No one, including parent or custodian, has an inherent right to possess or control property or assets otherwise belonging to a minor child. They can, however, apply to the court to be appointed as a guardian of that minor child’s property. While it may seem rare for minor children to own property of any significant value, many minors come into vast fortunes through testamentary gifts from others. A financial windfall for a minor can occur when a surviving parent dies intestate or with a valid will failing to authorize the estate trustee to retain a minor child’s inheritance in trust and administer the trust during the child’s minority. In such an instance the estate trustee is generally required to pay into court the estate funds to which the child is entitled. Likewise, an untimely death may entitle a minor child to life insurance proceeds (where a trust has not been established for those proceeds when making a beneficiary designation), or may give rise to the payment from the so-called “orphan’s” benefits from publicly or privately funded pension schemes. Without a court appointed guardian, such entitlements (with the exception of amounts qualifying under s. 51 of the CLRA) would be paid into court to the credit of the minor child and be held there during the child’s youth or until a subsequently appointed guardian of property makes a successful application to control those monies.
According to s. 47 of the CLRA, any person, including a parent or custodian, may apply to the court to be appointed as guardian of property of such a child. If such an order is obtained, all of the monetary amounts referred to above should instead be paid to the appointed guardian of property. This application has to be made on notice to the Office of the Children’s Lawyer, pursuant to s. 47(1) of the CLRA, which could oppose the application and require the applicant to prove why such an appointment would be to the minor child’s benefit.
If the application leads to the appointment of a guardian, the guardian is entitled to make a testamentary appointment in respect of the future guardianship of property of the minor child in much the same manner as the testamentary custodial appointment is made; that is, the court-appointed guardian of property may “pass on” the guardianship of the minor child’s property through a testamentary appointment.
In Subsection 61(2) of the CLRA, there is a specific provision that a guardian of property of a minor child could appoint by will one or more persons to be guardians of the property of such child after the death of the appointor. Considering that testamentary appointments of guardians of property temporary in nature, pursuant to s. 61(7), the appointee guardian is required to bring an application for a “more permanent” order of guardianship within the same 90-day period prescribed in the case of custodians appointed by will. Lastly, s. 61(8) of the CLRA preserves the right of any person at any time to apply to become guardian of property (following s. 47 of the CLRA), thus subjecting (if need be) the testamentary appointment of guardians of property of a minor child, and court-appointed guardians of property of a minor child, to the ongoing scrutiny of the court.
Don’t act before fully understanding your rights and obligations. Contact the lawyers at Levy Zavet PC (Levy Zavet) in Toronto, Ontario for more information about guardianship over property and for all of your personal and business legal needs.