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Guardianship of Minors

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We know that we should have a will to be able to distribute assets in our own name to the right people but what happens to our minor children should both parents die prematurely?

You can add guardianship details to your will but a will takes time to go through probate so what happens to the children in the meantime?

To safeguard and expedite this sensitive process, it is advisable to have a separate document called a Deed of Guardianship. You can state who you would like to act in your place as a parent, and also name secondary contingents. You sign the document and have it witnessed and your guardians also sign. This allows the document on its own to be presented to the Family Courts without the delay or additional costs associated with the court of probate.

If your guardian/s are coming from overseas, you also need an Appointment of Guardian form which allows you to state who you would like to act in Hong Kong, whilst the permanent guardian/s make their way over to Hong Kong to collect or look after your children.

Without a Deed of Guardianship, the Hong Kong Government could decide for you. Family members would have to apply to the courts for guardianship, which would be especially difficult if the children are to leave Hong Kong. If family members quarrell over the custody of the children (for example grandparents from both sides), this could cause further delays.

There is also the risk that there is no one available in Hong Kong to care for the children whilst the permanent guardian are travelling to Hong Kong Kong to take custody. What happens until they arrive? Hong Kong has a foster care system meaning that your children could stay with strangers until family members arrive. If there are more than two children, they could end up separated for a short time. Hong Kong’s foster case system has a good reputation, but that would be additional anxiety for your children after the have just lost both parents.

It is a horrible thought to consider but as there is a risk, albeit tiny, a guardianship document should be accessible with your other important documents for all to understand your wishes for your orphaned children.

These documents would then be presented to the nearest family lawyer for processing and your children can stay with people they know and love whilst the procedure is finalised.

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