Today we explore what Dutch law has to say about guardianship in the event of a parent's death.
When someone passes away who leaves behind a child who is still a minor, the registrar must inform the court of this immediately. The court will then check to see whether the child has a legal guardian, such as one parent with parental authority who is still alive.
One Parent With Parental Authority Survives
If both parents shared parental authority prior to the death of one of the parents, the surviving parent will automatically have sole parental authority and no further action will be required of the court.
No Parent With Parental Authority Survives
If the parent who passed away had sole parental authority, or if both parents passed away, the court will take action to prevent a situation in which a child is left without an adult who bears legal responsibility for him or her.
If the parent appointed a legal guardian for the child before passing away, either in a will or in the Parental Authority Register (Dutch: Gezagsregister - more on this topic later), then this legal guardian must appear before the court to make a statement indicating that he or she wishes to accept legal guardianship, within 14 days after having been officially informed of the guardianship appointment (by family or by the deceased's notary). From that point forward, the legal guardian will have guardianship over the child. This guardianship replaces parental authority.
If the guardian does not accept legal guardianship or if the parent(s) did not appoint a guardian, the court will appoint a guardian as soon as possible, ex officio or at the request of the family of the child, or at the request of the Raad voor de Kinderbescherming (Child Protection Services). The court will appoint the guardian who is deemed to be most appropriate for legal guardianship. This could also be an institution like Bureau Jeugdzorg (Youth Care Office). However, where possible, the court will give preference to a family member or to someone who was closely attached to the family. When appointing a legal guardian, the court will also take the cultural and religious background of the deceased parent(s) into consideration, and the upbringing which they would have wanted the child to have.
Once appointed, the legal guardian will be responsible for taking care of and raising the child until he or she becomes of age. This does not mean that the legal guardian necessarily has to take care of and raise the child by themselves; he or she can delegate the task to someone else. The legal guardian does, however, have final responsibility for the welfare of the child.
The legal guardian may use the funds left to the child to cover the costs of taking care of and raising the child. If the child has not been left with any money, the legal guardian will be considered to have a moral duty to support the child. There are certain state benefits that can be claimed for an orphaned child, but these generally do not cover all costs of living.
Surviving Parent Without Parental Authority
A special position has been created for the surviving parent who did not have parental authority before the time of the deceased parent's death. Dutch family law has an explicit preference for assigning parental authority to the surviving parent. The court will assign parental authority to the surviving parent, even if the other parent appointed a different person to become legal guardian in his or her will or in the Parental Authority Register, except in the case of 'well-founded fear' that 'the interests of the child (children) will be harmed'. The deceased parent's wishes can therefore be overruled. In practice, a great deal must be the matter before the court will assume that there is well-founded fear that the interests of the child will be harmed by the surviving parent being assigned parental authority. A classic example is the situation in which the surviving parent killed the parent with parental authority.
In short: the point of departure under the law is that the surviving parent will be assigned parental authority even if he or she did not have such authority before the time of the deceased parent's death.
Do you have a minor child? In that case it is certainly wise to appoint someone as legal guardian in the event of your death. This helps prevent a judge from having to decide who will be responsible for your child should you pass away. In the Netherlands, appointment of a legal guardian by way of a will can only be done with assistance from a notary. In such a will you can also specify how your estate must be handled.
A free-of-charge and easy option for appointing a legal guardian is by registering your wish in the court's Parental Authority Register. The Parental Authority Register only provides for the appointment of a legal guardian. This register cannot help you to arrange anything else with regard to your estate.
You can appoint one or two persons together as legal guardian. You should be aware of the fact that appointing two persons together can lead to your child not being eligible for certain financial benefits. In such a case the two legal guardians are supposed to share the costs of living of the child between themselves. Because of this it is generally advisable to name just one legal guardian. It is, however, possible to name a second guardian (consecutively) for the situation that the guardian named first is unable or unwilling to take on legal guardianship.
Do you have reasons to doubt whether it will be in the best interest of your child if the other parent should be assigned parental authority in the event of your death? Considering Dutch law's perspective in this regard, it is extremely difficult to prevent this. In such case it is best to still appoint a legal guardian in your will or in the Parental Authority Register (even if such appointment can be overruled) and to ensure that this appointed legal guardian is aware of your concerns, so that he or she can inform the court. Doing so will, in any event, increase the odds of the judge taking your concerns into account. If you expect to pass away while your child is still a minor (in case of terminal illness), then it would be best to share your concerns with Bureau Jeugdzorg. If Bureau Jeugdzorg agrees with you that the other parent should not be assigned parental authority, then Bureau Jeugdzorg can, by way of the Raad voor de Kinderbescherming, try to prevent such appointment and can also try to ensure that your child remains under the supervision of Bureau Jeugdzorg.
Ariane Hendriks is one of five lawyers at Van Kempen c.s. Advocaten, a firm experienced and specialising in family and juvenile law, among other topics. They work on the basis of funded legal aid as well as on a paid basis. For more information you can also visit her blog or call at 020-6385150.