What is a Deed of Guardianship and why is it important?09Apr2021
Members of our Wills, Probate and Trusts team answer some common questions about Deeds of Guardianship and why they are necessary.
What is a Deed of Guardianship and how is it different from having guardianship provisions under a will?
In the event of both parents passing away, a Deed of Guardianship can be used to appoint guardians of the minor children and provide guidelines in relation to the caring and well-being of such minor children. A Deed of Guardianship must be in writing and dated and signed by the parents making the Deed of Guardianship before two witnesses.
Guardianship provisions provided under a will serve the same purpose as a Deed of Guardianship. However, if you want to keep your arrangements under your will confidential and separate from the arrangements in relation to the caring and well-being of your children, a Deed of Guardianship would be helpful as it is a standalone document.
During these uncertain times, do I really need to set up a temporary guardianship?
Even if you have a Deed of Guardianship or have appointed permanent guardians under your will, this only applies in the event of death of the parents. Thus, we recommend setting up a Deed of Temporary Guardianship to provide for quarantine or other COVID-19 related circumstances where the children could be physically separated from parents.
The advantages of having a Deed of Temporary Guardianship is that you can appoint temporary guardians and even alternative guardians who live close to your children and can attend to them immediately if the parents are physically required to attend quarantine or health quarters.
Although there is no particular statutory regime for a Deed of Temporary Guardianship in Hong Kong, having a Deed of Temporary Guardianship in place is the most that can be done to communicate to the authorities the intentions of the parents. The purpose of this document is to convince the authorities that the parents have a preferred plan in place and do not wish the authorities to take custody of their children.
Do both parents need to provide consent to the appointment of a guardian?
Generally, both parents should agree to the arrangements in relation to the caring and well-being of their minor children and give consent and sign the Deed of Guardianship/Temporary Guardianship. If only one parent gives consent to the appointment of a guardian without the other parent knowing and the other parent has given consent to the appointment of another guardian, it may create challenges as to which guardian should be responsible for caring the minor children.
What’s the difference if I am an expat vs. local HK resident?
Both expats and Hong Kong residents can execute a Deed of Guardianship and a Deed of Temporary Guardianship. If, in the not uncommon scenario where an expat does not have any close relatives in Hong Kong with whom the Social Welfare Department would feel comfortable leaving the care of such expat’s children, the Social Welfare Department may have no choice but to take custody of such children. Having a Deed of Guardianship and a Deed of Temporary Guardianship would assist in these circumstances.
Who should I appoint as the legal temporary guardian?
The temporary guardian should be someone who is based in the same jurisdiction as your minor children and will be available to care for your children within a short notice period if and when needed.
What documents do I need to provide and how long will this take?
Arranging a Deed of Guardianship and a Deed of Temporary Guardianship can be relatively quick and completed within one or two weeks after receiving the necessary information. We would generally ask for (1) the particulars of the children (e.g. full legal name and birthday) and the guardians, whether permanent, temporary or alternative (e.g. full legal name and address and contact details); and (2) copies of HKID/passports of the children and guardians (if available).
Jonathan Yeung / Samantha Chu
If you would like to discuss any of the matters raised in this article, please contact:
Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.