Do you have a will that outlines guardianship for your children? If you don’t, you’ll find that you’re not alone, according to Matthew Lloyd of Professional Wills. “It’s a job that almost everyone puts off – or perhaps puts in the too-hard basket,” he says. But while no-one likes to think of the worst-case scenario, it’s important to make sure you have appropriate instructions in place, particularly if you’re an expat in Hong Kong. Legally, any child under the age of 18 must have an adult who is responsible for them. We asked Matthew to explain what happens if both parents die in an accident.
“If there is no will, or if it’s out of date because it hasn’t been rewritten since the birth of the children, then there is a problem,” he says. Matthew warns that if both parents have passed away and there is no evidence of guardians being appointed, the state takes over that responsibility until a guardian is found. The court can then ask for applications from people who may be interested in taking on the legal guardianship.
“The court will consider the applications, probably interview those applicants and then award the most appropriate the right to the children,” he says. But while your children may have grandparents and godparents, for example, they have no legal status when it comes to caring for your children if they’re not nominated as guardians in your will.
According to Matthew, it’s important to have a will that appoints legal guardians of your choice and outlines the financial arrangements to support the guardians. The appointment must be made in a legal document, such as a will or by a deed. “Nothing else will guarantee that the preferred alternative parents of your children will be as you would wish,” he adds.
Matthew also cautions families in Hong Kong who are isolated from their normal extended family support group; they can be particularly at risk in the event of sudden death, due to the time required for legal guardians to travel. He recommends drafting temporary guardianship documents in which local friends or neighbours are appointed to take care of your children until the legal guardians arrive from overseas. Once completed, these should be kept at home with one copy given to the temporary guardians. “The deed can immediately be produced by your temporary guardians to show their legal position and therefore prevent the children from being removed from their home,” he says. “The peace of mind that comes knowing that this small but important job is finished is well worth the time and effort spent in completing the task.”
See more in our Living in Hong Kong section:
This article first appeared in the August/September 2018 issue of Expat Living magazine. Subscribe now so you never miss an issue.