Guardianship 101

HISTORICAL REVIEW

Notably, modern French and German civil codes have deeply interconnected guardianships with family considerations, prioritizing the appointment of relatives as guardians. This emphasis on familial ties seeks to ensure a strong support system for the individuals under guardianship. Across various European countries, public agencies have been established to administer guardianships, aiming to maintain transparency and professionalism in the process.

In contrast, the United States has chosen a different approach, entrusting the task of administering guardianships to the courts. This framework grants the courts significant authority in appointing guardians and overseeing their powers and responsibilities.
Today, the scope of a guardian’s powers and duties is primarily defined by statutes and the judiciary. These legal guidelines outline the responsibilities of a guardian, among which making important decisions on behalf of the dependent also referred as ward, managing their financial affairs, and safeguarding their overall well-being.

The role of a guardian is one of great trust and responsibility, as they are tasked with advocating for and protecting the interests of those who are unable to care for themselves adequately. As societies continue to evolve, guardianship laws must evolve and adapt to the dynamics of the current society and ensure that utmost protection and all necessary care for vulnerable individuals going through hard times like losing family is extended.

DEFINITION

In the legal context, a guardian is an individual designated either through a court order or as specified in a legal document such as a trust, durable power of attorney, or a will to fulfill the role of substitute parent.

The role of a guardian is to assume decision-making authority for another person, commonly referred to as “the ward”, who is either underage (“minor”) or has become incapacitated and unable to carry out essential tasks independently. These responsibilities encompass a wide range of decisions, including providing consent for medical care or treatment, procuring necessary items to sustain day-to-day living, arranging educational or health matters, handling financial affairs such as managing bank accounts, assets, making or managing investments.

The appointment of a guardian is a critical measure to ensure that vulnerable individuals/ minor children receive proper care and protection when they are unable to manage their affairs on their own due to incapacitation or other limitations.

GROWING IMPORTANCE OF GUARDIANSHIP AMONG THE EXPAT COMMUNITY IN THE UAE

Guardianship holds paramount importance for the UAE expat community with young children residing outside their countries of origin.

As expatriates and residents in the UAE, they are facing unique challenges we urge them to carefully address such as navigating the legal systems of two or more countries, the cultural differences when marriages are mixed, and the language barriers.

Elaborating on the importance of guardianship for the expat community with young children of mixed country of origin, religion, and language, it becomes evident that the need for a designated guardian is even more pronounced due to the additional complexities and challenges they face:

1. Legal Recognition: In cases where the expat community’s family structure may not align with the local norms or laws, appointing a guardian ensures legal recognition and protection for the children, avoiding any potential legal disputes or challenges to their custody. In the case of international families, legal and administrative processes related to guardianship can become even more intricate, as they often involve multiple countries’ laws and regulations leading to even more legal and administrative complexities.
2. Avoiding Custody Disputes: Without a designated guardian, custody disputes among relatives or extended family members may arise, leading to potential legal battles, extended court procedures and increased and prolonged emotional distress for the children.
3. Minimizing Legal Complications: The guardianship process under foreign legislation can be complex and time-consuming. Having a pre-designated guardian in place reduces legal complexities and ensures a smoother and faster transition for the children.
4. Avoiding State Intervention: In the absence of a designated guardian, the UAE courts must intervene and decide on the children’s custody. By appointing a guardian, expat families can exercise their autonomy and ensure their wishes are respected.
5. Cross-Cultural Understanding: Expats of mixed country of origin often have diverse cultural backgrounds and traditions which may not have been an issue when the parents were present. Having a designated guardian who understands and respects these cultural differences ensures that the children’s upbringing is in harmony with their diverse heritage and a continuation to their way of living to date, while maintaining a strong sense of identity and connection to their roots.
6. Religious Considerations: In families with mixed religious backgrounds, appointing a guardian who is sensitive to and capable of addressing the various religious beliefs and practices is crucial. Never an easy decision, we recommend that this point is clearly discussed to ensure children’s spiritual needs are respected and supported, offering them a well-rounded understanding of their faith as per the wishes of their biological parents.
7. Language Proficiency: A designated guardian who is proficient in the languages spoken by the children and can bridge language barriers becomes essential in ensuring effective communication and emotional support during difficult times.

In conclusion, for the expat community with young children of mixed country of origin, religion, and language, the importance of guardianship cannot be overstated. By prioritizing the children’s best interests and cultural needs, expat families can provide them with a nurturing and supportive environment, transcending borders and maintaining a strong sense of identity and belonging.

SELECTION OF GUARDIAN MADE BY ADULTS:

As expat communities have been steadily growing in the UAE, the need for guardianship may arise unexpectedly, emphasizing the importance of understanding and addressing these legal matters with due diligence and care. Ensuring the selection of a suitable and responsible guardian is vital to protecting the rights and interests of those in need of such protection.

This is why we strongly recommend that expats take this into consideration if they raise their children in the UAE and the dependents are still minors, lacking the ability to make certain decisions until they reach adulthood.
Certainly, the preferred course is to identify and appoint a guardian to minors, in most of the cases the best profile are individuals with close ties to the minor such as grandparents, second, and third degree relatives, or someone familiar with the minor.

It is very important that the chosen guardian must possess the willingness and ability to carry out their duties diligently, while acting in the best interests of the minor, fully comprehending the fiduciary responsibility placed upon them and the timeline attached. We wish to stress the importance of willingness of the individual that adults need to carefully assess before officializing their choice, as guardians may also face change of life circumstances.

When selecting a guardian for minors, several crucial points should be considered to ensure the well-being and best interests of the children:

1. Close Relationship: Prefer individuals who have a close and positive relationship with the minor, such as immediate family members or close relatives, to provide a sense of familiarity and comfort.
2. Willingness and Capability: Ensure that the potential guardian is willing and able to take on the responsibilities of caring for the minor, including emotional support, financial management, and decision-making.
3. Moral and Ethical Values: Evaluate the prospective guardian’s character, values, and beliefs to ensure they align with the upbringing and values desired for the minor.
4. Parenting Skills: Assess the individual’s parenting skills and ability to provide a stable and nurturing environment.
5. Guardian’s Financial Independence: Ensure the chosen guardian has sufficient personal financial resources and does not rely solely on the minor’s inheritance or funds for support, guaranteeing the minor’s needs are met independently of the estate’s contributions.
6. Health and Age: Take into account the health and age of the potential guardian to ensure they can fulfill their role throughout the children’s formative years.
7. Geographical Proximity: Ideally, select a guardian who lives in close proximity to the children’s current community to minimize disruption to their social and educational life.
8. Legal Competence: Ensure the selected guardian has the legal competence and capacity to act on behalf of the minors, as required by applicable laws and regulations.
9. Communication and Collaboration: Prioritize individuals who can maintain open communication and collaborate with other important figures in the minor’s life, such as extended family members or close friends.
10. Child’s Preference: If appropriate do consider the child’s preferences and desires, taking into account their age and maturity level, while ultimately ensuring the decision is made in their best interest, one that they will accept if needed.

In many instances choices made based on emotions may not be the most suitable profile, that is to carry the level of responsibility behind the role of a guardian.

By carefully considering these points parents may be guided in identifying and selecting guardians whom they find fit to provide a stable and nurturing environment for their children while they remain minors, and guarantee their physical, emotional, and psychological well-being as they grow and develop.

LEGAL WAY TO APPOINT GUARDIAN WHILE RESIDING IN THE UAE

It is essential for parents to carefully consider their specific needs and family circumstances, as well as the laws of the UAE that will govern the appointment of the guardian if and when needed when making this important decision.

Under the UAE jurisdiction, there are several methods recognized for appointing a guardianship . The below legal forms for appointing a guardian offer distinct advantages and disadvantages and are appropriate fit to specific individual circumstances:

1. Appointing Guardianship through a Will: Parents can appoint a guardian for their minor children through a Last Will and Testament . This allows them to specify their preferred guardian, ensuring that their wishes regarding the care of their children are legally documented and filled.

Advantages:

1. Clearly outlines the preferred guardian’s name and relationship to the minor.
2. Legally valid and enforceable after the parents’ death.
3. Allows parents to specify other important matters, such as asset distribution and funeral arrangements, in the unlikely event of the early demise of the child.

Disadvantages:

1. Only takes effect after the parents’ death, leaving a gap in the appointment process in case of temporary incapacity or emergency situations.
2. Can be subject to probate , which may lead to delays and additional costs.

Under DIFC, guardians can be appointed in the Guardianship Will or Full Will. In terms of the Parents’ wishes in their DIFC Courts Will, the DIFC Courts can issue Interim Guardianship Orders as well as Permanent Guardianship Orders. One must ensure that the nominated guardians meet the eligibility requirements under the Rules, and it does not contravene the UAE Public Policy.

The ADJD Wills Registry and the ADGM Courts provide for appointment of a guardian for the minor children through Wills.

• May not be accepted by all institutions or authorities, depending on local laws and regulations.

SELECTION OF GUARDIAN BY THE UAE COURTS:

Unfortunately, not too many people proactively prepare for life altering events by selecting, appointing and registering guardianship.

In cases where expatriates have not made a specific guardianship appointment for minors, the Family Court in the UAE steps in to appoint a guardian for the children and officialize their presence, capacity and duties. The UAE Court shall assume responsibility for minors who have lost their parents governed by the UAE Federal Law No. 28 of 2005, as amended, Federal Decree Law No. 52 of 2023 concerning Personal Status Law.

The court will consider the best interests of the children when making this decision.

• Necessity for Court Involvement: The court intervenes in cases where parents have not appointed a guardian through a will or other legal documents or if the appointed guardian is unable, unavailable or unwilling to fulfill their duties.
• Family Court Proceedings: The Family Court in the UAE oversees guardianship matters and ensures a fair and thorough evaluation of potential guardians.

– Best Interests of the Minor: The primary consideration is the well-being and best interests of the children, focusing on their physical, emotional, and educational needs. The court considers matters related to the minor’s religious upbringing, cultural aspects and inheritance rights when making guardianship decisions.
– Appointing a Legal Guardian: The court will appoint a guardian for a non-Muslim minor to provide them with proper care and support. This guardian may be a relative who is not an immediate family member, a trusted friend, or even a qualified individual from the community.
– Qualifications and Moral Character: The court assesses the qualifications, moral character, and capacity of potential guardians to provide a safe and nurturing environment for the minor.
– Temporary and Permanent Guardianship: The court may appoint a guardian for a temporary period, if needed, or a permanent guardian for the long-term care and protection of the minor depending on the individual case.
– Guardian’s Responsibilities: The appointed guardian may assume various responsibilities, including the minor’s physical care, financial management, education, and overall well-being.

POWERS OF COURT’s APOINTED GUARDIAN:

The powers that the court may transfer to the guardian of the minor, either in full or in part, may include:

• The power to provide informed consent to voluntary or involuntary medical examination and treatment if it is in the minor best interest.
• The power to provide informed consent to social and supported living services.
• The power to make decisions related to travel or permanent relocation.
• The power to choose providers of medical, social, and supported living services.
• The power to receive all notices on behalf of the minor.
• The power to act as an advocate of the minor in all proceedings.
• The power to have custody of the minor.
• Any other power specifically identified by the court and in accordance with the individual, religious, cultural circumstances.

Through this meticulous and lawful process, the UAE courts strive to safeguard the rights and interests of minors, ensuring they are placed under the care of a responsible and capable guardian who can provide them with a loving and supportive environment.

CONCLUSION

In conclusion, as a law firm we understand the complexity behind guardianship and we are able to advice our clients to select the legal vehicle aligned not only with their preferences, personal circumstances but taking into consideration the native country laws and the UAE laws and how they interact to provide and ensure adequate protection for their children’s well-being in the most efficient way.