Guardianship as expats in China
Find here Daxue Talks episode 79. In this episode, Camille Xu, partner at one of China’s largest law firms, provides her insights on setting up legal guardians as an expat family in China.
Full transcript below:
If unforeseen circumstances happen, what documents have to be prepared for defining guardian for children?
In a will you can define a guardian for you children. That guardian we are talking about is permanent guardian, meaning this person will take care of the child for a long term until the child is 18 years old. Normally in the will for expats they will define their brothers or sisters or very close family members as the permanent guardian but when we are talking about – you are living in China – it normally has a gap for the permanent guardian to be able to get into China to fulfil their obligation as the guardian. For example for visa issues, for notification issues, they are just not aware of the accident, so that may be two months or even longer and so what we recommend to foreign families is that they, in addition to the permanent guardians they also define one or two or three temporary guardians living in China to take care of the children for their immediate needs.
So, what we do is we help our clients to establish the temporary guardian documents. You should choose several temporary guardians. Those are people that you are sure will be living in China longer than you do. They will be staying in China for a long time and of course those will be the trustworthy friends to take care of your children and you should prepare a set of documents saying that you entrust them to act as your temporary guardian and they accept to act as your temporary guardian. So, we help our clients to enter into temporary guardianship documents as well as wills if they don’t have one in foreign countries, but majorly we focus on the temporary guardianship documents.
What do these documents look like and what kind of information should they include?
This document looks like an agreement actually. It’s an agreement between you and the temporary guardians, the chosen ones. In a document it says that I am the parent of whom and I entrust whom, whom, whom as my temporary guardians. And temporary guardians should also sign on and say – I accept, I will take on the responsibility to take care of the children if something happens to you. In this document we should also include some of the important obligations of the temporary guardians, for example the immediate information to the consulate and to the permanent guardians of the accident happening in China. So, once something happens, the temporary guardians should inform immediately the permanent guardians and the consulate. Of course, the contact details of the permanent guardian and the temporary guardian is listed in that document. We also define the transfer of rights and obligations of the temporary guardian because we are talking about the permanent guardian coming into China and pick up the kids, so at that point of time the temporary guardian doesn’t have to take care of the children anymore and they don’t have right to keep the children any more. So that is clearly defined in the document.
It’s like ten paged agreement to both parties and in addition to the temporary guardianship document we also prepare a power of attorney for the expat families. It looks very similar but in the power of attorney it’s more like for daily regular needs, for daily life. Because the deed of temporary guardianship is for the severe cases, when both parents pass away or lose capacity, but for the power of attorney it’s more a regular cases, it’s for the case when people are not able to come back to China. For example today with COVID-19, many people are locked out of China, they couldn’t come back to China but if their children are still in China, they need someone to take care of their kids. Then using this power of attorney, the person can prove that I have the right to take care of the children while the children are still in China because there is a legal document made. So, that’s like an agreement – and it’s written in both English and Chinese and in case any authority is questioning for example the Chinese police or the neighbourhood community is questioning – why are you keeping these children in your family? You can easily prove to them that – that is because of the entrustment by the parents.
What is the process of getting those documents done and how long will it take?
For the temporary guardians documents it quite simple actually. What we require is just the ID, the passport copies the contact details the telephone number, email address of all the temporary guardians and permanent guardians and of course of your family members, you and your spouse and the kids. So that’s all the information we need, but normally it takes a long time, maybe several months for the expats to choose the guardians, temporary and permanent ones. But once you have that done and you give me all the necessary documents, we could prepare the file in two weeks and we can give you the deed of temporary guardianship. And if you would like, we as lawyers could help you witness the signature of that document and we will sign on it to prove its validity.
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