Guardianship

There are basically two kinds of guardianship relating to children – guardianship of a child themselves (‘of the child’s person’), or of a child’s property.

A person who has decision-making responsibility for a child can give guardianship of the child to a named person through a document called a ‘guardianship agreement,’ or through a will where they name the other person as the guardian.

The person being given guardianship has to be an adult. In Nova Scotia, this means someone who is 19 or older. In these cases, the appointment of a guardian is a private matter between the parties. These appointments may be challenged by anyone who might have a legal right to care for the child.

These agreements are usually used to deal with temporary care issues. They are often used when a parent needs to enroll a child in school outside of the child’s usual school district. Your local school board may have an example agreement that you can use. These are not court documents. 

The person signing over guardianship of a child will usually have to swear or affirm this agreement in front of a lawyer or Commissioner of Oaths. We recommend that you have the document notarized (with a lawyer who is a ‘Notary Public’) if the agreement is being used outside of Nova Scotia. Court staff may not be able to swear or affirm these agreements, as they are not court documents.

You cannot apply to the court in Nova Scotia for guardianship of the child themselves (‘of the child’s person’). You can apply to the court to get guardianship of a child’s property only.

Usually, if one parent dies, the other will get care of the children. You and the other parent may want to say this in your wills, or in your separation agreement, if you have one, to be clear what your wishes are.

If you have decision-making responsibility of your children, and you do not want the other parent to have decision-making responsibility if something should happen to you, you can state this in your will, and you can specify who you want as your children’s guardian. The other parent, though, may disagree with this, and may apply to the court to have care of the children. The other parent will usually be given care of the children, unless a judge decides that they are not a suitable parent or cannot look after the children safely. You should speak to a lawyer to get advice on this issue.

If you appointed a guardian in your will and have changed your mind, you should see a lawyer to help you change your will. There are special rules for how this can be done, and if you do not do it correctly, you can invalidate (‘cancel’) your will.

If you have a guardianship agreement, you can cancel this at anytime. This is usually done through a separate document. A copy needs to be given to the person who is caring for the child.

If you are looking to get guardianship of a child’s property, you will need to make a court application. This would usually be done under Nova Scotia’s Guardianship Act. You may want to make an application like this if a child under the age of 19 is given property or money, for example, if the child inherits money from a deceased relative or got it through an insurance claim (like if they were injured in an accident). You should speak with a lawyer for advice on how and where to do this.

A child, in this situation, is defined as a person who is unmarried and under the age of 19, and includes a child who is unborn at the time of the death of the father.

If you are making a court application for guardianship of a child’s property, you must do this through the Supreme Court (Family Division).

Guardianship of the child themselves (‘of the child’s person’) is a private matter that can be undone by the person who gave guardianship in the first place. Decision-making responsibility is granted through a court order, or written agreement between parties, and cannot be undone as easily. For example, if you had a court order which talked about decision-making responsibility and you wanted to change this order, you would need to apply to the court for a new order.

Guardianship of a child’s property is only done through a court order, and does not deal with the child’s living arrangements or personal care.

A trustee is a person appointed by a court or named in a will who is responsible to carry out the wishes of the deceased person (‘the testator’) in relation to dealing with property or assets for minor children.

If a person dies without a will and they have property or assets that are to be given to a child, then a guardian will likely need to be appointed for the child’s property under the Guardianship Act, if no other person has been appointed. If there is no person who wishes to act as the guardian, then the money can be paid to the Public Trustee’s Office.

The Guardianship Act says that you can pay the money or give personal property if the child has no guardian and the value of the property is under $10,000, and the combined value of the money and personal property is not over $2,000 per year to:

• the child directly if the child has a legal obligation to support another person (for example, if the child is a parent who is under 19)

• the parent that the child lives with

• the person who has lawful care of the child (usually through a court order)

• the guardian of the child’s person

The Public Trustee of Nova Scotia is an independent corporation set up by the province of Nova Scotia. The Public Trustee’s Office can act in a number of ways to deal with the affairs or property of:

• people who have died,

• people who are not able to deal with their own affairs (are incompetent),

• missing persons, and

• children.

This office usually acts in situations where no one else is able to manage the person’s affairs. The Public Trustee’s Office can look after trust funds for children who are under the age of 19 (the age of majority in Nova Scotia), but does not look after a child’s person (for example, caring for a child or making decisions about raising the child).        

For example, the Public Trustee’s Office can receive money as a beneficiary:

• under a life insurance policy

• under a death benefit

• when someone dies without a will, or under a will and the executor or administrator of the estate is not allowed to act as the child’s trustee.

For more information about the Public Trustee’s Office, click here.