Why do you need an act of guardianship and an act of temporary guardianship

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With the current school calendars in Hong Kong disrupted, many parents are preparing for the worst and thinking about how to ensure their children are properly taken care of, should an unforeseen event occur. Amid plans to temporarily relocate and purchase more medicine to deal with the Covid-19 situation, parents should also consider preparing a guardianship and/or temporary guardianship deed for their minor children.

A deed of guardianship and a deed of temporary guardianship is a legal document setting out the terms of custody of your children in the event of an unforeseen event for you or your spouse. For example, if you and your spouse are absent from Hong Kong for an extended period, die or become mentally incapacitated, your children will need someone to look after them.

1. Act of guardianship

A guardianship can be used to appoint legal guardians for your children in the unfortunate event of your death. It can provide guidelines for the care and well-being of your children in the future.

In the event of the sudden death of you and your spouse, unless your children have another parent, guardian or third party having parental authority over them, the court will become the de facto guardian of your children. The court will have the power to appoint a guardian for your children. Anyone who applies under these circumstances can be nominated. The situation can get complicated if disputes arise between different parties wishing to be appointed as guardian.

Throughout the litigation process, the Court may entrust your children to their immediate family. However, if this is not possible, or there are concerns about whether this arrangement is appropriate, your children may be required to reside in a care home until the matter is resolved. As there are rules and restrictions on children visiting care homes, it will be incredibly distressing for your children when they are already grieving and missing their parents. This emotional roller coaster can be avoided simply by preparing an act of guardianship beforehand.

The preparation of a will and the inclusion of guardianship provisions will serve the same purpose as a guardianship document. However, as the details of your asset distribution will also be set out in a will, if you wish to keep your financial arrangements confidential, a deed of guardianship will be advantageous as it is a separate legal document focusing only on the terms of child care.

The powers of being a guardian are extremely broad. Upon his appointment as guardian, the guardian will have all the rights, powers and duties over the estate of your children, including in particular the right to receive and recover in his own name for the benefit of the children, property of any kind whatsoever. and where located that your children are entitled to receive or recover.

2. Act of temporary guardianship

A Temporary Guardianship Deed allows you to appoint your local friends, relatives or neighbors to temporarily care for your children until you or your spouse can resume your roles as your children’s primary caregivers.

Given ever-changing travel and quarantine restrictions, if you and your spouse are planning to travel overseas without your children, a Temporary Guardianship Deed will ensure that your children are properly cared for if you are stuck. abroad and cannot immediately return home. Although there is no legal regime for a temporary guardianship act in Hong Kong, it will serve as important evidence to the Court and the Department of Social Welfare of your intended custody arrangements for your children when you cannot exercise your role as caregiver. It will also help the court decide who to appoint as the legal guardian of your children in the event that you and your spouse die unexpectedly and you have not prepared a guardianship document. This will at least prevent the court from placing your children in daycare in the meantime.

The preparation of a deed of guardianship and a deed of temporary guardianship is simple and inexpensive. It must be written, dated and signed by the parents in front of two witnesses. The appointment may concern two or more persons acting jointly. When appointing the guardian, you should take into account, as far as possible, the views of your children, depending on their age and understanding.

Your proposed guardians should be notified of their appointment and given an original or certified copy of the deed so that they can deal with your children quickly if needed. Guardianship shall have no effect if the named person does not accept the appointment, either expressly or tacitly by conduct. As your children grow and circumstances change, the guardianship deed may need to be changed and different guardians may be appointed.

Good planning in these unprecedented times is necessary. We are aware that the safety and well-being of your children will always be your main priority. Therefore, early preparation of a guardianship act and a temporary guardianship act will ensure that they will be properly taken care of in the event of a disaster.

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