Although it is something we hope will never happen to us here in Hong Kong or to anyone we know, it is a subject that it’s best to know about in case of the worst case scenario. With the help of Phoenix Wills (who are all expats and parents themselves) we uncover some valuable advice and help about guardianship and beyond.
Your most valuable assets
It’s hard to imagine but should something happen to both parents, children under 18 (provided they’re not married) will need a guardian. They can be appointed by a deed of guardianship, but it’s more common to make the appointment in a will.
Ideally, guardians should be appointed in a will and a deed, as the deed can give guardians immediate access to the children, whereas a will usually takes a few days to present to the courts. If there is no guardian appointed, one must be found through a court process, and the laws of the country you’re living in at the time will apply.
As an expat, you should consider appointing temporary guardians who also live in Hong Kong, preferably close friends or colleagues, to take care of the children until the appointed guardians arrive, which could take some time. Children will only be allowed out of the country with legal guardians, whether appointed by you in a will and a deed, or by the courts if no appointment of guardians had been made.
Domestic helpers can be named as guardians, but you must remember that if you’re no longer here, your helper will lose her visa and the HK government will demand that she either finds another job or leaves Hong Kong. You can, however, state that you would like your helper to stay with the children in your home until their permanent guardians arrive.
Home away from home
As children get older, the role of a temporary guardian becomes more significant. Assuming the child has a permanent ID card, he or she may be better off staying in Hong Kong, particularly if they’re in the middle of important school studies. The appointment of guardians, legal or temporary, is still valid but the temporary guardian may now have a more significant role to play. Younger children will nearly always go back to grandparents, or aunties and uncles. But the “middle aged” kids are another matter; a 14 year-old in the middle of IB or O Levels may not appreciate being separated from friends, having just lost both parents, and may also have been away from the family back home for a long time. The ties may not be as strong as they once were, and Hong Kong may well be the only home the children have known.
What happens if both parents pass away without having made a legal appointment of guardians? Tragically, in a fairly recent case in Hong Kong, Social Services were swift in picking up two orphaned children in their home and taking them into care – meaning a local orphanage – because the parents had not made arrangements for guardianship.
In such a situation, it’s up to the Hong Kong courts to appoint the guardian. This process takes time, and all family members on both sides are considered and consulted; any disagreement results in the children remaining in the care of the Hong Kong government, with limited visitation rights, until the dispute is resolved.
It’s worth noting that, by default, the father’s family has the strongest chance of being granted guardianship! You may have made private arrangements with a close friend to whisk the children off to avoid this, but you could be putting your friends at risk with possible kidnapping charges. The only way to ensure that your children don’t end up in the system for even the shortest time is to legally appoint permanent and temporary guardians.