I have been approached recently to provide some answers to questions regarding the guardianship of children in the UAE. Guardianship is an important concept that every parent of young children should understand fully. The below are some of my responses.
In your opinion, why should parents appoint temporary guardians for their children while living in the UAE?
One would first need to make the distinction between permanent and temporary guardianship. Permanent guardians are appointed to care for any children on a permanent basis (as the name suggests) while the latter is appointed in the interim period immediately following a person’s death. The appointment of a temporary guardian is especially important in the event that the permanent guardian is situated outside of the UAE. In other words, the temporary guardian will be charged with looking after any children of a deceased person until such time as the necessary arrangements have been made to connect the children with the permanent guardian. These rights include but may not be limited to removing the children from the UAE if necessary for example.
What is the role and rights of a temporary guardian?
Simply put, the temporary guardian is responsible for caring for the children in the immediate aftermath of someone’s death. In this interim period, it’s the duty of the temporary guardians to connect the children with the permanent guardian. The permanent guardian, on the other hand, is awarded full parental responsibilities. It should be noted that while guardianship is referred to under Rule 86 of the DIFC Wills and Probate Registry Rules, the appointment of both temporary- and permanent guardians is subject to the discretion of the court and must comply with local statutory provisions. In other words, if an appointment is made which is contrary to local provisions, the court may appoint an alternative candidate. This is also the reason why one must first consult with a legal professional.
What is the legal process to appoint a temporary guardian? Do their names have to be mentioned specifically in the will / or is it a separate legal document? Do temporary guardians have to visit a lawyer too, or just the parents to have the paperwork drawn up?
One may refer to both temporary and permanent guardianship under one’s will, however, the will needs to be lawfully registered through either the Dubai International Financial Centre (DIFC) or the Abu Dhabi Judicial Department (ADJD) It’s important to consider however that the jurisdiction of DIFC and ADJD will vary slightly. This should be addressed by one’s legal representative. There are also limitations on who may, and who may not be appointed as guardian. This too must be addressed and is regulated by various rules and statutes. Under the DIFC, guardians are required to complete separate witness statements for example, whereas this is not a prerequisite under the ADJD.
What happens to non-Emirati minors who are left orphaned in the UAE if they do not have temporary guardians appointed? Where are they taken and who takes care of them in the interim? (Assuming they are waiting for their permanent guardians to arrive from another country)?
If a guardian has not been appointed, traditional Shariah Law procedure is followed. In all cases, the court shall have the discretion to make any decision they deem fit, and the final decision lies with the court. It should also be noted that all cases are different, and it’s difficult to provide 1 definitive answer.
What is the process for a temporary guardian to collect the children? Do they have to show evidence, such as the will, a notarised document, etc? Do they need to bring a lawyer?
During the registration process, guardians should be provided information on how to proceed by their legal representative. The general approach is to reach out to the respective entity where the will was registered (for example DIFC or ADJD,) however the executor should do so as soon as possible, as he/she will have the responsibility of administering the estate, and it’s their duty to do so. I always encourage clients to provide my details to executors nominated, as I have an existing relationship with both DIFC and ADJD, and I handle numerous probate matters on a daily basis. It would also be wise for parents to be in frequent contact with temporary and permanent guardians, and to provide them with the contact information of not only the DIFC or ADJD for example, but also of the permanent guardians, and executors in anticipation of any unforeseeable circumstances.
In a place like the UAE, where people can come and go, how can parents easily update their wills/wishes if their choice of temporary guardians leaves the country? Is this an easy process or does it involve new wills/documents each time?
The process will vary depending on the type of will registered. For the DIFC, there is a set fee to effect an amendment, whereas when it comes to an ADJD will, the will must be translated and registered again in order to effect the new changes. My advice is to stay in touch with the guardians nominated and to make the relevant amendments as frequently as necessary to ensure legal certainty. Consulting experienced Wills & Estate Planning Lawyers can also help you navigate these procedures smoothly and ensure that your will remains up-to-date and legally sound.
Conclusion:
Notwithstanding the above information, each matter should be treated with care, and on the basis of its own merits. For individualised assistance, please reach out to a specialist in the field. Your children are the most important key consideration and should be prioritised.
Head of Wills and Inheritance