Naming a guardian

(a) Is guardianship of children as provided in a will binding in Nova Scotia?

(b) Does Nova Scotia give authority to the courts to vary the guardianship appointment in a will? And if so, are there any restrictions on how and when a court can change the guardian?

Summary

A guardianship appointment in a will is not binding. Consent of the named guardian is required, and the appointment may be varied by the Court.

Discussion

In Nova Scotia, a person having the care and custody of a child may appoint a guardian for that child by will or other instrument in writing (executed before two witnesses) pursuant to s. 19(1) of the Guardianship Act, SNS 2002, c 8. Section 19(5) provides that an appointment “is not effective without the consent of the person appointed.”

A guardianship appointment may also be varied by the court. Section 19(6) of the Guardianship Act states: “[a]n appointment under this Section does not restrict or diminish the jurisdiction of the Supreme Court with respect to the appointment or removal of guardians of the person of the child” (s. 19(6)). However, there are no reported Nova Scotia cases where the court has exercised its authority pursuant to s. 19(6).