When we become a mother, our priorities change, what becomes the most precious to us are our children. We are ready to do everything in our power to protect them and ensure that they can live the best of lives.
Imagining their lives without us by their side to protect and guide them is the hardest thing ever. On the other hand, it is essential to stop and think about it in order to choose the right person, who can take over if, one day, we are no longer able to do so.
What to do in the event of the death of one of the parents
When one of the two parents dies, the law automatically provides that it is the remaining parent who now assumes sole guardianship of the children until they reach majority, regardless of the custody context that prevailed before death.
What to do if both parents die
When both parents are deceased or declared incapacitated by the court due to an illness or an accident affecting their brain capacity, then it is checked whether or not the parents had named replacement guardians in a will, a mandateincapacity or by completing a tutor designation form with the Curateur public du Québec.
In the event that nothing has been provided for, the law provides that anyone who wishes the well-being of our children can apply to the court to have a guardian appointed for our children. When possible, the two families meet at a meeting of relatives and friends and choose three people from both families to form a guardianship council. These three people will make recommendations to the court on who they think is best suited to become a guardian and care for the children. The court will appoint the tutor according to the evidence presented, taking into account the fundamental interests of the children and will not be required to follow the recommendations of the family. In the event that no one is able to accept the charge among the relatives, it is the Department of Youth Protection (DPJ) who will apply to the court to obtain guardianship of the children and will then see to their place in a foster family or in a youth centre.
As you can see, failure to act can have huge consequences for the well-being of your children. This is why it is very important to appoint a tutor when writing your will and protection mandate.
Who to name in case of death?
You must draw up a small list of people around you whom you have complete confidence in, starting with the person who you think is the most capable of taking good care of your children according toyour values. Remember that you can only designate one person at a time and not a couple. For example, if you designate one of your brothers and you want to put his spouse as second choice, ask yourself the question: "If this person was no longer in a relationship with my brother, would I still want 'she takes care of my children? It is important to consider the age of the person, their family situation (ex.: already has 3 children and is a single parent), the place of their residence (would you be ready to change their scenery with your children), etc.
Attention, when the two parents are separated, it is important that they agree together on the choice of tutor and that they make sure that the other parent has drawn up their will and mandate to incapacity. Indeed, when different people have been chosen by both parents, it will be the choice of the last deceased or incapacitated parent who will be privileged.
In the event of the simultaneous death of both parents, when different people have been named, the court will decide the matter, taking into account the best interests of the children.
Furthermore, when your choices have fallen on certain people, it is very important to discuss it with them in order to see if they are ready to accept such a responsibility and to inform them of your wishes concerning the type of education to give to your children.
You can also write a letter on this subject addressed to the future tutor and detail the values that you would like him to transmit to yourchildren, the type of education to favor, the type of school you would like them to attend (private school vs public school), etc.
This way you stay in control and put the odds on your side so that your children can grow up in an environment of trust and conducive to their well-being and development.
