Legal Guardianship Vs. a Will – Which Option is Right For You | Stevens Law

Posted:  Jun 1, 2023

Legal Guardianship Vs. a Will – Which Option is Right for You

As a parent, your most important job is to protect and provide for your children. And one of the best ways to protect your children even after you pass on is by planning your estate. Estate planning Is a legal arrangement that a property owner makes while still alive so that when he/she passes on, their property will be given to their surviving children, spouse, and other named beneficiaries. However, estate planning, particularly the one meant for the surviving children, comes in many forms; it can be by drafting a Will or by appointing legal guardianship. In this article, we will critically explain the two forms of estate planning and also show you which option is right for you.

So, let’s get on with it.


What is Legal Guardianship?

Legal guardianship is a legal arrangement where an entity, called a legal guardian, is appointed (at his or her own will) to take care of another person’s personal and financial affairs. Anybody can establish legal guardianship for many reasons. For instance, it could be established by parents with surviving children who feel like leaving a portion of their assets to them should they pass on. Also, legal guardianship may be established by normal adults when they cannot make personal decisions due to disability or illness.

As we said earlier, every legal guardianship agreement must include an entity, often called a legal guardian. The role of a legal guardian is to make decisions regarding the child(ren)’s protection, education, care, discipline, etc.


Who Needs a Legal Guardian?

-        Surviving Children

Surviving children of a deceased person are one of the people we can say that legal guardianship is made for. This is because, as parents, you would want your children to be under the care of someone that will truly care for them should the inevitable, which is death, happens. Therefore, by appointing a legal guardian, the responsibility of your surviving children will fall on the entity you appointed.

-        Incapacitated Adults

Another group of people who needs a legal guardian are adults who are unable to make decisions for themselves due to disability or illness.

It should, however, be noted that people who anticipate the need for someone to make decisions on their behalf in the future may also consider establishing legal guardianship.


How to Establish Legal Guardianship

Just like it is in every other form of estate planning, establishing legal guardianship also follows some specific processes. We shall briefly look at the steps:

  1. The process starts by filing a petition with the court. This will be done by the entity interested in establishing legal guardianship.
  2. After the petition has been filed in the court, the next step would be for the court to review the application and then appoint a guardian ad litem to investigate the case and report back to the court.
  3. After this has been done, the next thing would be for the court to hold a hearing to determine if legal guardianship is necessary and who should be appointed.
  4. Once the court has deemed legal guardianship necessary and an appointment has been made, the next step would be for the selected guardian to file regular reports to show that they are performing their duties.


What is a Will?

A Will can be seen as a legal document created by a property owner outlining how their assets are to be distributed and who they should be distributed to after they have passed on. A will is called a legal document because it represents the decisions or wishes of a particular entity, even if they are not alive to anyone. A will is different from a legal guardianship; for a start, they are structured differently, and also, they don't deal with the same thing. While legal guardianship makes use of an appointed living entity to enforce the wishes of a deceased, a will uses a written document (can sometimes be a video or audio recording).


How to Create a Will

Just like in legal guardianship, creating a Will also involves some important steps. We shall briefly look at them.

1. Before you attempt to create a will, you must first identify all the assets that belong to you. After you have identified them, the next step would be to decide what property and assets will be included in the will.

2. After you have decided which of your assets/property will be added to the will, the next step would be to choose an executor to carry out the instructions in the will.

3. Since the purpose of creating a Will is to leave something behind for people when you pass on, the next step in creating a Will is to determine who will be the beneficiaries of your will.

4.  There are situations where a trust or other provisions will be needed, so it is important that you critically think your options through.

5. After you have successfully done all the things we have mentioned, the next step would be to consult your attorney to help you draft the will.

6. The last step would be to sign and date the will with witnesses present.


Legal Guardianship vs. a Will, Which Option is Right for You?

The simple and short answer to this is that legal guardianship and a last Will serve different purposes, and thus, we can’t specifically say that a particular option is the right one for you. Legal guardianship, for example, can be a helpful mechanism for providing care and decision-making for individuals, particularly children who cannot care for themselves. A Will, on the other hand, is a legal document that provides clear instructions for the distribution of property and assets after the property owner's death.

However, depending on the situation, it is quite possible for legal guardianship and a will to be used together to provide comprehensive planning for the future.


Contact us at Stevens and Company Law Corporation For Professional Help

In conclusion, deciding between legal guardianship and a will depends on your specific circumstances and your family's needs. Each option has advantages and drawbacks, making it essential to consider the most suitable for your situation carefully.

If you need assistance determining the right choice for your family or require professional guidance in drafting a will or establishing legal guardianship, consider contacting Stevens and Company Law Corporation. Our team of experienced attorneys based in British Columbia can provide expert advice tailored to your unique needs and help you make an informed decision. Contact Stevens and Company Law Corporation today to schedule a consultation and ensure your family's future is well-protected.


Contact Us


Box 943
#326 - 198 East Island Highway,
Parksville, B.C.
V9P 2G9


Monday8:30a.m. - 5p.m.
Tuesday8:30a.m. - 5p.m.
Wednesday8:30a.m. - 5p.m.
Thursday8:30a.m. - 5p.m.
Friday8:30a.m. - 5p.m.
Stevens & Company Law on Facebook  Twitter  Stevens & Company Law on LinkedIn

Toll Free:1-877-248-8220