Why you need a Deed of Guardianship and Deed of Temporary Guardianship

With the current school calendars in Hong Kong being turned upside down, many parents are preparing for the worst and thinking of how to ensure their children are properly taken care of, should some unforeseen event occur. Amidst the plans to temporarily relocate and to purchase more medicine to weather the Covid-19 situation, parents should also consider preparing a Deed of Guardianship and/or a Deed of Temporary Guardianship for their minor children.

A Deed of Guardianship and a Deed of Temporary Guardianship is a legal document setting out your children’s care arrangements should an unexpected event occur to you or your spouse. For example, if you and your spouse are away from Hong Kong for a prolonged period, pass away, or become mentally incapacitated, your children will need someone to care for them.

1. Deed of Guardianship

A Deed of Guardianship can be used to appoint legal guardians for your children in the unfortunate event of your death. It can provide guidelines in relation to your children’s care and well-being going forward.

In the event that both you and your spouse suddenly pass away, unless your children have another parent, guardian or third party having parental rights with respect to them, the Court will become your children’s de facto guardian. The Court will have the power to appoint a guardian for your children. Anyone who applies in these circumstances may be appointed. The situation may become complicated if disputes arise between different parties wishing to be appointed as a guardian.

Throughout the litigation process, the Court may place your children in the care of their close family. However, if this is not possible, or there are concerns surrounding whether this arrangement is suitable, your children may be required to reside in a care home until the matter is resolved. As there are rules and restrictions on visiting children in care homes, this will be incredibly distressing for your children when they are already grieving and missing their parents. This emotional rollercoaster can be avoided simply by preparing a Deed of Guardianship beforehand.

Preparing a Will and including guardianship provisions will serve the same purpose as a Deed of Guardianship. However, as details of your division of assets will also be set out in a Will, if you wish to keep your financial arrangements confidential, a Deed of Guardianship will be beneficial as it is a separate legal document focusing only on the children’s care arrangements.

The powers of being a guardian are extremely wide. Upon being appointed as a guardian, the guardian will have all the rights, powers and duties over your children’s estate, including in particular the right to receive and recover in the guardian’s own name for the benefit of the children, property of whatever description and wherever situated which your children are entitled to receive or recover.

2. Deed of Temporary Guardianship

A Deed of Temporary Guardianship allows you to appoint your local friends, relatives or neighbours to temporarily care for your children until you or your spouse are able to resume your roles as your children’s primary carers.

Given the constantly changing travel and quarantine restrictions, if you and your spouse intend to travel overseas without your children, a Deed of Temporary Guardianship will ensure your children are properly cared for should you be stuck overseas and cannot immediately return home. Although there is no statutory regime for a Deed of Temporary Guardianship in Hong Kong it will serve as an important piece of evidence to the Court and the Social Welfare Department of your intended care arrangements for your children when you cannot exercise your role as the carer. This will also assist the Court in deciding who to appoint as your children’s legal guardian going forward in the event that you and your spouse unexpectedly pass away and you have not prepared a Deed of Guardianship. This will at least prevent the Court from placing your children into a childcare home in the interim.

The preparation of a Deed of Guardianship and Deed of Temporary Guardianship is straight-forward and not a costly exercise. It must be in writing and dated and signed by the parents before two witnesses. The appointment can be for two or more persons acting jointly. In appointing the guardian, you will need to take into account the views of your children as far as practicable, based on their age and understanding.

Your proposed guardians should be made aware of their appointment and be provided with an original or certified copy of the deed in order for them to swiftly care for your children as and when necessary. The guardianship will have no effect if the appointed person does not accept the appointment, either expressly or impliedly by conduct. As your children become older and circumstances change, the Deed of Guardianship may need to be amended and different guardians may be appointed.

Proper planning during these unprecedented times is necessary. We appreciate that your children’s safety and wellbeing will always be your main priority. Therefore, preparing a Deed of Guardianship and Deed of Temporary Guardianship early will ensure they are properly cared for if and when disaster strikes.