Guardianship Guide:

How to be prepared overseas

No one wants to catastrophise.

However, in these crazy and unprecedented times, it’s hard not to think ahead. Especially for new parents, finding the best childcare, purchasing insurance, planning their finances, considering parenting strategies and more, will suddenly become important.

New parents should also consider establishing guardianship for their young children. In the event of any unfortunate circumstances where parents are unable to take care of their children, such as the prolonged absence, death or mental illness of one or both parents, appointing the right legal guardian will safeguard your children’s future.

Without a formal appointment of a guardian, when neither parent is able to care for their children under the legal age of 18, the Hong Kong court will become their de facto guardian. Things can get messy if family members compete to look after the children, which may be detrimental to their wellbeing. No parent wants their children taken into care, especially if there is a loving and competent friend or family member who is able to look after them. This scenario can be avoided simply by appointing a guardian early.

Documents & benefits

Legal guardianship is recognised when appointed as part of a will or through a separate document called a deed of guardianship. There are different benefits to both options:

# A will enables the appointment of a testamentary guardian and all consequential financial arrangements, which are crucial. Through a will, parents can channel sufficient funds to their children’s living and education expenses and arrangements. With everything written down in black and white, arguments and uncertainty are avoided at a time of grief, leading to a smoother guardian transition.

# A deed of guardianship is made by appointing a guardian or guardians for the children in the event of a prolonged absence or death of either or both parents. While this option does not cover financial arrangements, it comes with its own benefits. For expats, a temporary deed of guardianship can determine the local friends or neighbours who can temporarily take on the role of a legal guardian and take care of the children until the legal guardian arrives from their residing country.

A deed has to be made in writing, before being dated and signed by the parent in front of two witnesses. It makes sense to ensure your proposed guardian knows about their appointment and that they have the original or certified copy of the legal document. This is not a complicated or expensive document for a lawyer to prepare for you. It’s especially important because a deed of guardianship isn’t written in stone; it can be amended and new guardians can be appointed to take into account changing circumstances as your children get older.

It’s always good to hope for the best and prepare for the worst. We hope that contingency remedies won’t be needed, but it’s always better for proper planning to be done. At the end of the day, what matters is the safety and wellbeing of your children. In the event of some unforeseen incident, a plan will ensure your children are properly taken care of. All in all, organising a deed of guardianship for your children early makes sense.

Withers’ Hong Kong office is at 30/F United Centre, 95 Queensway. 3711 1600 | withersworldwide.com

SHARON SER, Partner at Withers, looks at the issue of appointing guardians and why proper planning makes sense.