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Legal guardians as an expat family in China

Find here Daxue Talks episode 78. 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:

According to Chinese law, who becomes the guardian of a child if parents are suddenly unable to care for their child?

According to the Chinese civil law actually the first person who becomes the guardian of the child will naturally be the grandparents, maybe it’s not very similar to the Western way of thinking. As far as I know many expats, they would like to have their brothers and sisters, those are the uncles and aunties to become the heirs of the child, but according to the Chinese law, this is not an option. Actually according to the law the grandparents would become the legal guardian if there is no will in place. It’s for sure that the grandparents will take care of the children. The second category would be the elder brothers and sisters of the children if the elder brothers and sisters are already adult. That means they are already above 18 years old. The third category would be the Chinese and other close relative, or the neighbourhood community or the Chinese organisations, naturally become the guardian of the child.

Are the Chinese rules you mentioned applicable to foreign families?

Yes, you might question that hey I am a foreign family, should I apply to the Chinese laws? And the answer is yes because we are talking about the accidents, unexpected tragedies while you’re living in China. So, China will be the residence place of your family while you pass away and according to the Chinese law for the foreign families. The residence law or the nationality law could both be applicable to the person but the court will probably choose one law which it seems more favourable to the child, but in reality the Chinese courts will always choose the Chinese laws as applicable law because Chinese court wouldn’t know the foreign laws. So yes, the Chinese rules and Chinese laws will apply.

What if the expat family already has a foreign will in place defining the guardian, is it valid in China?

Well if the expat family already has a foreign will in place that’s very good, it’s a good step. As I talked in the last episode, the foreign will is not directly recognised in China for many many reasons: language barriers, stability, the application of laws. But on the guardianship part, we believe that because we’re not talking about assets, the guardianship part the Chinese law would normally recognise the guardian defined in a foreign will but you should make sure that your foreign will is duly translated in Chinese language and we do recommend that you have this will legalised with the Chinese consulate in your home country. Have a stamp on it and it will be recognised in China.

Any recommendations in choosing the temporary guardians in China?

Yeah, I mentioned first of all you should make sure it must be a close friend. You should make sure that those are the trustworthy people, loving people who will take care of your children, responsible people – that’s the first one. Then, we recommend you to choose what’s better if you have those friends – for example the Chinese citizens or mixed couples. Those people because you are sure that they will be in China for a long time – because I have some cases that people have picked up close friends but those families leave before the one who make the guardianship documents. They leave China earlier than the person making the guardianship document. So that makes the document invalid because we are talking about – you should make sure that this person is always in China when you are not, so we recommend you choose someone that you are sure will be living in China for a long time.

The last recommendation is that if you are not sure, you should pick 1 or 2 or 3 backups because in that case you could make sure that your children will be under right protection even if the first choice is gone, then you have second choice and third choice.

Any questions? We will find an expert to answer them. Drop your questions in the comments or send us an email – dx@daxueconsulting.com.