Legally, any child under the age of eighteen must have an adult who is responsible for him/her. What happens, then, if both parents die in an accident? If there is a Will then we hope that the appointment of Legal Guardians were made as part of the process. If there is no Will or if it is out of date because it has not been re-written since the birth of children then there is a problem.

If the parents are dead and there is no evidence of Guardians being appointed then the State takes over that responsibility until a Guardian is found. If no suitable person is available or willing to do it then the State remains in charge of the orphaned child or children for the rest of their minority.

The court can then ask for applications from people who may be interested in taking on the Legal Guardianship of the children. It will consider the applications, probably interview those applicants and then award the most appropriate the right to the children.

whychildrenneedwillhome01.jpgGodparents have no legal status although most people choose them with the thought at the back of their minds that these are the people that they would like to bring up the children if circumstances took their parents away. The appointment must be made in a legal document e.g. your Will! Nothing else will guarantee that the preferred alternative parents of your children will be as you would wish!

If there was no Will, it could happen that both sets of grandparents apply and there is the possibility of a major falling out of the two families, benefiting nobody least of all the children.

Families in Hong Kong who are isolated from their normal extended family support group are particularly at risk in a situation such as described here.

What to do?

Make a Will appointing the Legal Guardians of your choice and outlining the financial arrangements that will ensure support for the Guardians in their job. Make sure there is sufficient money available for the education and general care of your family.

This is the hardest decision to make, especially if your children are still small, but the alternative is very unappealing.

Making a Will brings great peace of mind knowing that everything is organised properly. You will not leave a trail of problems behind you if you take off suddenly and do not come back!

It is a job that almost everyone puts off - or perhaps puts it in the too-hard basket. It does not have to be a painful experience. PWL do our best to make the process as relaxed as possible. 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.

Deed of Temporary Guardianship

At the same time, we also recommend drafting temporary guardianship documents in which local friends, neighbours or colleagues are appointed to take care of children until the legal guardians arrive from overseas.  Once completed these should be kept at home with one copy given to the temporary guardians.  This is used in the event of the Social Services turning up wanting to take the children away there and then. The Deed can immediately be produced by your temporary guardians to show their legal position and therefore preventing the children from being removed from their home.