Kids Protection Plan, expat family looking into sunset

As a parent with minor children, it is important to plan for the future. As a parent living overseas – or preparing to live overseas – making sure your children’s future is secure takes on an even higher level of importance. Many countries’ custody and guardianship laws are very different from those in the United States; and, if you pass away unexpectedly while living abroad, having a detailed plan in place is the only way to ensure that your children end up in the care of the guardian you desire.

So, how do you name a guardian for your children if your family lives in a foreign country? Here is an introduction to what you need to know:

The Risks of Not Appointing a Guardian for Families Living Overseas

First, let’s review why expat parents need to appoint guardians for their children. This is not meant to scare parents (although the prospects are indeed scary), but rather to help shed light on the types of issues that need to be addressed when appointing a guardian for a US-citizen child living overseas.

There are four primary reasons why establishing provisions for guardianship is essential for families living abroad:

  • Child Protective Services (CPS) – While having to deal with Child Protective Services is most American parents’ nightmare, some countries do not have emergency CPS. If you were to die unexpectedly without a protection plan, depending upon where you live, there is a very real possibility that there would be no one with the legal right or responsibility to take care of your children.
  • Foreign Custody Court – The Hague Convention on the Civil Aspects of International Child Abduction, which has been signed by Australia, Costa Rica, Panama, Thailand, the United Kingdom and 89 other countries, provides that child custody is to be determined under the law of the country where the child “habitually lives.” This means that a foreign court applying foreign laws will decide what happens to your children if you do not have a plan in place.
  • Foreign Travel Restrictions – Without a legally recognized guardian by their side, your children will not be able to travel outside of the country in which they reside at the time of your death. This means that the custody and legal issues will need to be resolved in court before your children can return to the United States.
  • The Financial and Emotional Toll – If you do not leave behind an executable plan, the process of appointing a guardian for your children will be much more difficult and expensive than it has to be. Dealing with the loss of family members is difficult enough, and the last thing you want is for your loved ones to face additional financial and emotional burdens because you failed to plan ahead.

Keep in mind, these issues are not entirely unique to foreign jurisdictions. When parents in the United States die unexpectedly and without an estate plan that addresses guardianship of their minor children, the burdens on their surviving family members can be severe. Without clear direction from the parents, the courts will decide who should take responsibility for the children’s care, and the process of obtaining a court-approved guardian can be long, costly, and stressful for all parties involved. This is especially true when different family members have different ideas about what is best for the couple’s children.

Appointing a Guardian: Key Steps and Considerations

Fortunately, the process of appointing a guardian for your children is not overly complicated. In fact, while there are some additional complexities for expatriates as compared to US residents, the planning processes for families living in the US and abroad are largely the same.

Here are some of the key steps and considerations involved in appointing a guardian for minor children when you live or are preparing to move abroad:

1. Choose a Guardian and a Backup Guardian.

First, you need to choose who you wish to appoint as your children’s guardian. It is generally advisable to name a backup guardian as well, in case your first choice becomes unavailable or unwilling to serve in the role.

It is important that you speak with the people you want to name as your guardian and backup guardian. They should understand what it means to serve as a guardian, and they should be willing to take responsibility for ensuring your children’s comfort and safety in the event of your untimely passing.

2. Make Sure You Know Which Laws Apply.

In order to prepare a legally enforceable estate plan, you need to know the laws by which it will be governed. The relevant laws vary greatly from one country to the next – for example, Thailand’s laws do not allow for the enforcement of written guardianship arrangements. Your estate plan may remain subject to US law; but, you will need to consider the laws in your country of residence as well. If you have not yet decided where to move, it may be worth considering your candidate destinations’ custody and guardianship regimes.

3. Avoid Conflicts in Your Overall Estate Plan.

In some cases, it will make sense for US expatriates to have multiple wills (for example, if you live in Panama). If you have different wills that are effective in different countries, it is critical to ensure that they do not contain any conflicting provisions. Your desires with regard to your children should be clear and unambiguous, and your estate plan should not leave (or create) any unanswered questions.

4. Consider Setting Money Aside for Your Guardian.

While establishing guardianship through your estate plan or protection plan is less financially burdensome than dealing with the courts, there are still certain costs involved. In addition, your guardian may need to make certain accommodations for your children (such as buying a larger car or furnishing an additional room in their home). As a result, parents will often set aside funds – typically in a trust – to help offset their guardian’s expenses.

5. Make Sure the Right People Know about Your Plan.

Finally, once you prepare your plan, you need to make sure it gets into the right hands. Your guardian and backup guardian should both have the information they need to take action quickly should you die unexpectedly, and you should make sure that your professional advisors are aware of the plan you have put in place. If you revise your estate plan over time, as many parents do, you will want to ensure your revised plans get communicated to the appropriate people as well.

While there are lots of issues to consider when it comes to planning for your children’s future, it is well worth putting in the time and effort to develop a plan that is as clear and comprehensive as possible. The effort you put in now will provide you with essential peace of mind as you live your life abroad, and will provide certainty for your children and other loved ones, should unexpected circumstances arise.

Schedule a Kids Protection Plan® Consultation at Jiah Kim & Associates

If you would like more information about establishing guardianship of your minor children as part of a Kids Protection Plan®, we encourage you to schedule an initial consultation. To discuss your estate planning needs in confidence, please call (646) 389-5065 or request an appointment online today.

This blog post is written for educational and general information purposes only, and does not constitute specific legal advice. You understand that there is no attorney-client relationship between you and the blog publisher. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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New York, NY 10028

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