info-HK@phoenix-wills.com |  +852 5500 5260

info-SG@phoenix-wills.com |  +65 8669 6345

        

info-HK@phoenix-wills.com |  +852 5500 5260

info-SG@phoenix-wills.com |  +65 8669 6345

Wills, Guardianship and Estate Planning

Guardianship

Guardian-2-1024

Any child under the age of 18 (or 21 in Singapore) must have an adult who is responsible for them. What happens if both parents die in an accident? If there is a Will, we hope that the nomination of a legal guardian is included. If there is no Will, or if it’s out of date because it hasn’t been written since the birth of the children, then it’s a different story.

The appointment of guardians is usually made in a Will, but it is also possible to make a deed of appointment of guardianship. The deed is a legal document that has to be signed and witnessed just like a Will, but it will not deal with the disposition of assets and the setting up of financial arrangements in order to provide for the children and their guardians. Hence, we recommend having both documents in place to ensure that the children are taken into care by the guardians immediately and the assets are made available for the children’s upbringing and educational costs as quickly as possible.

If there is no evidence of appointed guardians as outlined in a Will or a deed of appointment of guardianship, then the state takes responsibility until a guardian is found. If no suitable person is available or willing to act as the guardian, then the state remains in charge of the orphaned child or children for the rest of their minority.

In most countries this means that the children become wards of state or court, and the court will supervise arrangements for the immediate care of the children. This could mean a state-run institution, a charitable home, or foster parents.

The court will then ask for applications from people who may be interested in taking on the legal guardianship of the children, or seek to place the children with close relatives. It will consider applications, interview the applicants, and then award guardianship to the best suited candidate. It is worth noting here that Godparents have no legal status, although most people choose them thinking they would like them to bring up the children if circumstances took the parents away.

The court process can take time, and all the while the children may be in the care of family members if they reside nearby. If there is no family close by, or even if there is, but there is some doubt about the competence or suitable accommodation of the relatives, then the state has the legal right, and indeed obligation, to keep the children in a place of safety.

If members on both sides of the family apply to be granted guardianship, there is the possibility of a major family rift, if they cannot agree. Often the father’s family is favoured if the couple is married, but whichever way the court decides, it will not award the children to anyone as long as a conflict is ongoing. At the end of the process, the two sides could be at loggerheads and that is an unpleasant situation, which will benefit nobody, least of all the children.

Families living overseas who are isolated from their normal extended family support group are particularly at risk if things go wrong.

So what
should you do?

As a minimum, you should sign a deed of appointment of guardianship in order to formally appoint the legal guardians of your choice. To outline the financial arrangements in order to ensure support for the new guardians and sufficiently cover your children’s education, you would need to also have a Will drafted and signed. This is also a good time to review the adequacy of your insurance cover and financial planning.

The appointment of a legal guardian is one of the hardest decisions you’ll ever have to make, but the alternative of the children being placed in state care is a frightening reality – we think you’ll agree.

To find out more about the appointment of temporary and permanent guardians, please get in touch with our friendly team.

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