Sharon Ser and Samantha Gershon, Partners in the Family and Divorce Team at Withers, outline what you need to know
COVID-19 has been kept at bay in Hong Kong for the last two years, however this is no longer possible due to the Omicron variant. Families have been concerned for some time that they could be separated should a child need to be sent to mandatory quarantine as a result of teachers, coaches and fellow pupils testing positive or worse, should someone at home test positive. Now with the spread of Omicron, the likelihood of a family member testing positive is increasingly likely. Best advice? 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 and elderly family members. In the event of some unforeseen incident, a plan will ensure your family is taken care of. In this way, you will have peace of mind especially during these difficult and turbulent times.
SAFEGUARD YOUR CHILDREN
In the unfortunate event that parents are unable to take care of their children, either temporarily, whilst being quarantined or overseas, or for a prolonged absence due to, for example, the death or mental incapacity of one or both parents, appointing the right legal guardian will safeguard your children’s immediate needs and/ or their longer-term future. When neither of the parents are able to care for their children (when children are under the legal age of 18), without a formal appointment of a guardian, the Hong Kong Court will become their de facto guardian. In the absence of a parent, the court is likely to appoint the Director of Social Welfare to be the guardian of the children. If family members put themselves forward to take on guardianship of the children, things can get messy should they compete to look after the children. This is very likely to be detrimental to children’s wellbeing at a time which will be traumatic in any event.
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 of the parents’ choice before any troubles arise.
It’s unlikely that expatriate families will have family members in Hong Kong who are able to look after their children. They will need to rely on family members from other countries to travel to Hong Kong to look after their children. During the pandemic, when flights are scarce and there are strict testing and quarantine rules, it may be difficult for family members to get to Hong Kong quickly. This means that the appointment of temporary guardians until the permanent guardians can look after the children can be crucial. It ensures as smooth a transition of care for the children as possible in the circumstances. Temporary guardians can be friends or neighbours. It is best if they are people with whom the children are familiar.
DOCUMENTS AND 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 fundamentally important for the future wellbeing of the children. Through a Will, parents can channel sufficient funds to their children’s living and education expenses and arrangements. With everything written down, arguments and uncertainty are avoided at a time of grief, leading to a smoother transition of guardianship.
A Deed of Guardianship is made by appointing a guardian or guardians for the children in the event of a temporary or prolonged absence or death of either or both parents. While this option does not cover financial arrangements, it comes with its own benefits.
A Deed of Guardianship has to be made in writing, before being dated and signed by the parent in front of two witnesses, it’s not a complicated or expensive document for a lawyer to prepare. It’s important to ensure your proposed guardian knows about their appointment and that they have the original or certified copy of the legal document. This is crucial 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. The final Deed of Guardianship can also be left with an employer so that in the event something happens to the employee, the employer is aware of their employee’s wishes.
PROTECT ELDERLY RELATIVES
If relatives are elderly or physically incapacitated, they may need to be cared for by you and they will therefore be unable to go to a government quarantine facility or hospital on their own. If they have existing medical conditions which support their inability to go alone, it would be advisable to have a “to whom it may concern” letter prepared in advance, and verified by their doctor.
An Enduring Power of Attorney (EPA) gives legal authority to another person of the donor’s choosing to make property, financial and other legal decisions on their behalf. If your relative is mentally competent, this can be a useful way to assist them in expressing their wishes should they be separated from you. It may be an efficient way to help them with their day-to-day financial affairs should they have to go into quarantine or hospital in the short term.
EPAs need to be signed before a registered medical practitioner as well as a solicitor. Know that an EPA is limited to financial arrangements and does not cover the physical wellbeing of your elderly relative.
Withers has extensive experience in dealing with Hong Kong family law. Contact the writers: Sharon Ser at [email protected] and Samantha Gershon at [email protected]. Withers, 30/F United Centre, 95 Queensway, Admiralty, 3711 1600, www.withersworldwide.com.Tags: advice, children, covid, family, family law, legal advice, will