Hong Kong is home to one of the largest expat communities in Asia. It is estimated that there are now more than 700,000 foreign nationals living in Hong Kong, which is more than double the amount of expats living in Hong Kong since 1997.
As we have highlighted in our previous article “Appointment of Guardianship of Children in Hong Kong”, it is advisable to seek a relative and/or a close friend to be appointed as a permanent guardian for your child in case something happens to both parents. In case of expatriate families, it is pivotal to also consider appointing temporary guardians who live in Hong Kong, preferably close friends or colleagues, to take care of your children until the appointed permanent guardians arrive in Hong Kong. Such decisions are extremely important as your children will be going through an emotional and stressful time. In such a situation, children will only be allowed out of the country with their legal guardians, whether appointed by you in a Will and/or a deed, or by the Courts if no appointment of guardians had been made.
Signing over temporary custody is not very hard to do, and it can protect your children in situations when you are unavailable to provide for their care. While it is never an easy matter to face, it is important to know how to sign over temporary custody in the event that it becomes necessary. The overall process is not a highly complicated one, the bigger challenge sometimes is deciding who to ask for help.
Matters to think about when choosing a temporary guardian
Sometimes the obvious answer might be to look for a fellow parent. However, you do not need to exclude friends and relatives who have not yet had children. While choosing a guardian who has children at home may be a comfort, what is more important is their willingness to give your children the care and attention they need.
Space in Hong Kong is a rare commodity. If you anticipate needing to assign temporary custody for an extended period of time, you may want to choose someone who has enough room in their homes to reasonably accommodate your children.
Younger children will likely need more attention and care. Yet, it is important to know that teenagers may face different struggles in the case of parental absence. You may need to spend some time thinking about your children’s personalities, how they are likely to respond, and who is best suited to their specific needs.
Many clients ask whether they may appoint their domestic helpers to be their children’s temporary guardians until the arrival of the permanent guardians since their children are most familiar with them. Domestic helpers may seem like the obvious choice and legally you can name them as the temporary guardians. However, it must be noted that if both parents are no longer here, your domestic helper will lose his/her visa as their contract has been terminated. In some cases, the Hong Kong government will demand that she/he either find another job or leave Hong Kong.
The role of a temporary guardian maybe of greater importance as your child approaches the age of majority. Presuming that the child has a valid permanent ID card, he/she may be better off staying in Hong Kong, particularly if they’re in the middle of significant education times. The appointment of guardians – legal or temporary – is still valid but the temporary guardian may now have a more substantial role to play. A 14 year-old in the middle of the DSE or IB classes may not appreciate being separated from friends having just lost both parents. When making decisions on choosing a guardian, who has “the best interest of your child” must be considered carefully.
Cases of short-term absence
If you are planning to be absent only for a limited period of time – might this be for business, personal or holiday reasons – you may wonder whether officially signing over temporary custody is really necessary. Strictly speaking, it is not. However, there are some significant advantages to establishing temporary guardianship with someone you trust. Formally assigning a temporary guardian will help prevent any potential conflicts over who has the right to make decisions on behalf of your children while you are away.
Officially making someone a temporary guardian may allow him/her to quickly approve medical treatment, if necessary, should your children become ill or injured during your absence.
Similar to a Will, temporary and permanent guardians may be appointed by way of a deed which has to be signed and witnessed. However, such a document does not include matters such as the disposition of assets and the setting up of financial arrangements in order to provide for the children and their guardians. Thus, a Will and a Deed of Appointment of Guardianship should be made by parents so that the children’s financial as well as basic needs can be taken care of in the unfortunate event where both parents are not around.
Although it is something we hope to never face, it is an issue that must be confronted in case of the occurrence of the worst-case scenario. That is why it is recommended to seek professional legal opinion and make plans for your future and the future of your children. This is especially true for cases that involve single parents.
Our team at Hugill & Ip has extensive experience in dealing with children custody issues and Hong Kong family laws, so kindly get in touch with us to find out how we can help.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.