Appointment of guardians for young children is an essential part of looking after your family’s interests. Over the last 50 years, people have delayed starting a family until later in life. This delay increases the chance of one or both parents dying before the child reaches adulthood. Additionally, more children are attending university. This results in a longer period of financial dependence on parents. In this article we look at:
In the absence of an appointed guardian, the courts decide who will be the guardian. This may result in a period of time where the child is in State care whilst the courts decide on the best course of action.
Having a guardianship clause within your Will should avoid this happening. A Guardianship clause provides you with control over who cares for your child in the event of your death.
Here there is a potential conflict between UAE law and UK law. UAE Federal Law #28 of 2005 on Personal Status confers the right of appointing a guardian solely on the father.
Under English law, the person with parental responsibility is able to appoint a guardian. Here the mother automatically has parental responsibility. The father only has parental responsibility if married to the mother when the child is born or he is named on the birth certificate.
A guardian is a surrogate parent. It is a big responsibility. Always discuss your wishes with potential carers before naming them in your Will or other legal documents.
Parents usually choose people with the same values as themselves, such as culture and religion. This is particularly important in the UAE. UAE Federal Law # 28 of 2005 on Personal Status does not permit Muslim children to have non-Muslim guardians, even where this person is the child’s mother. Clearly, for those with marriages of mixed religion living in UAE, this could potentially cause additional problems if the father died.
Carers should be responsible people who are known to your child. If they already have children of their own, would your child fit in? How old are the potential carers? Parents are usually not a good choice as they are less physically able to look after children and may have health issues of their own.
How would your chosen carers finance the cost of raising for your child? Generally, it makes sense to have different people looking after your child’s inheritance (your estate) and acting as carers.
It is not possible to micro-manage the raising of your child. However, you can leave a letter of wishes. A Letter of Wishes is not legally binding but it can help in making decisions for your child. For example decisions on schooling.
Most people appoint one person or a couple with a reserve if the appointed person is unable or unwilling to act.
When living overseas, the permanent guardian of a child is rarely in the same country. It takes time for that person to reach the UAE and be appointed. There will be a period during which your child needs a temporary carer.
Appointing a temporary carer can be done via the local courts in Dubai or Dubai International Financial Centre (DIFC).
There are times when a parent may not act as guardian for their own child. An example of where this could occur under local law is where a non-Muslim woman is married to a Muslim man. Under English law, examples are where the parent is in prison, mentally or physically impaired.
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