Community Legal Information Association of Prince Edward Island (CLIA PEI) - Legal Information for Youth


Having a Baby

Naming a Guardian

Having a baby

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CLIA Family Law Information

There are two ways to name a guardian for your child:

  • through a will, if you are 18 or over (if you are under 18 and in the Armed Forces or married, you can also use a will to name a guardian)
  • through a different legal document if you are under 18

If both of the child's parents are known and one parent dies, the other parent automatically gets custody of the child. This may be challenged by anyone with an interest in parenting the child. If both parents agree in writing that a guardian will be chosen by one parent, and this has been done before the death of that parent, custody goes to the guardian rather than the surviving parent. If the deceased parent appointed a guardian without the other parent's written agreement, and the surviving parent wants custody, a court will have to decide who has custody. If a guardian has been named, the court will know the wishes of the deceased parent. The judge will make a decision in the best interests of the child and will take the parent's wishes into consideration.

If you are unmarried and under 18, you can name a guardian in a signed, written legal document.

It is best to do this through a lawyer, to make sure your document is properly done. This will make your wishes known to the judge who is deciding about custody arrangements for your child.

If you are naming a guardian for your child in your will, you should do this through a lawyer. Your will is less likely to be contested if it is carefully and properly written for your particular situation.

An appointment made in a will or another document does not become effective until a judge confirms it. It is essential to make sure that the person is willing to be a guardian before you name them. If the person decides not to take on the responsibility, the judge will not order them to do so.