Deed of Guardianship: Do You Need One?

Deed of Guardianship:  Do You Need One? 1
Jul 30, 2021

The world is struggling with the Covid-19 pandemic and as a result, many individuals are taking into account the legal paperwork needed in the event of a “worst case scenario.”  One legal document that parents may want to consider is a Deed of Guardianship, which sets out guidelines for the caring and well-being of minor children in the event of both parents passing away.

A Deed of Guardianship is a legal document signed by both parents and two witnesses.  It is a document separate from a Will and unlike a Will, a Deed of Guardianship will set out specific guidelines regarding the care of your minor children in the event of passing.  A Deed of Guardianship will set out the minor children’s primary caretakers and can also identify temporary guardians until such time the minor children can be in the care of their permanent guardians.  Many times, individuals will also choose to create a separate document called a Temporary Deed of Guardianship, allowing parents to set out clear guidelines on who will be the children’s temporary guardians to assist in the care of the minor children and set out the intention of the parents pending a permanent move to the permanent guardian’s household.

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Deed of Guardianships may be especially important to expatriates living in Hong Kong, especially when family members are not in the same jurisdiction.  For many expatriates, there is a concern that in the event of both parents’ death, the minor children would then be taken into government custody (eg. Social Services).  If this occurs, the government then makes a decision on who will be the appointed guardian.  Any disagreements among potential family member guardians can cause delay and result in the child/children remaining under the care of Social Services.  By having a Deed of Guardianship, the parents can have assurance on how and who  the children will be taken care of should the death of both parents occur.

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It is important to speak with a solicitor who can draft a Deed of Guardianship on you and your spouse’s behalf.  You may also want to consider establishing not only the guardians, but also alternate guardians in the event the guardians pass away before your child/children reach the age of 18 (which is the age when the guardianship terminates) or if the appointed guardians is unable or unwilling to act as a guardian for the children.

Deed of Parenting

When you speak with your solicitor, you may also want to consider discussing a Deed of Parenting as well.  What is a Deed of Parenting? A Deed of Parenting simply states that you and your spouse are the legal parents of the children.  This is important in circumstances where you and your spouse are traveling cross-border and there is any question by immigration and customs officers as to the parentage of your children and whether they are with appropriate caretakers.  Many times, customs and immigration officers may question parentage when you and your spouse have a different surname than that of your child/children.

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Speak with your solicitor about whether a Deed of Parentage is something to consider, especially as customs and immigration agents are becoming much more critical about travel and the necessity to have essential travel documents requirements.


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