Anisha Kumar Ramanathan, Senior Associate at Withers, outlines what you need to know.
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To make sure that children under 18 are properly cared for in the unfortunate event of the demise of both parents, one should consider appointing guardians, or, as is so often the case with expatriates in Hong Kong, appointing temporary guardians, in a will or a deed.
The law in Hong Kong provides that in the event of the death of both parents, the court can appoint a guardian for the children if no guardian has been appointed, and any person can apply to be a guardian. These applicants will be vetted by the court who can remove or replace them, but the ultimate result may not be that envisaged by the parents, and further complications may arise if there is an estate to be settled.
In any event, it is far from ideal for parties to have to apply to court at such an emotional time. A deed of appointment of a guardian can be made simply stating who should be the guardians of the children in the event of the death of both or either parent. All that is required is that the deed be in writing, dated, signed by the person making the appointment and witnessed by two witnesses. The guardian will assume all parental rights and authority over the minor. The guardian has all the rights, powers and duties of the minor’s estate; and has the right to receive and recover property to which the minor is entitled on his behalf. The views of the children, as to the choice of guardian, should be considered taking into account their age and understanding.
If it is intended that, in the event of both parents’ death, the children should leave Hong Kong and return to their country of origin, the appointment of temporary guardians to deal with the transition is most advisable. These temporary guardians can look after the children in the immediate aftermath of their parents’ death to ensure that their lives can continue in some shape or form until such time as it is appropriate for them to return to their home country. The temporary guardians can then arrange for the children’s repatriation at which time the guardians can take over.
The estate of the intestate parents will go to the children on trust while they are minors. This will involve the appointment by the court of a trustee who could be the same individual as the guardian or, if deemed appropriate, a trust corporation. Therefore, not only is it crucial for there to be an appointment of guardians for the children’s safety, there should also be a will to determine who should be the executors and trustees of the estate to avoid the necessity of going to court to appoint a trustee and guardian to deal with the finances. By making a will, one can make sure there is sufficient money left for the education and care of the children.
Withers’ teams of family and matrimonial lawyers have extensive experience in dealing with Hong Kong family law.
For enquiries, contact Anisha Kumar Ramanathan, Senior Associate at Withers, at [email protected].
Withers, 30/F United Centre, 95 Queensway, Admiralty, 3711 1600, www.withersworldwide.com.Tags: Anisha Kumar Ramanathan, family law, Matrimonial Law, Withers