Arranging Guardianship for Children in the Netherlands

In an unfortunate situation when an underage child's parents pass away, decisions need to be made about who will take over care-giving duties and who will manage the financial interests of the children.

It's essential to consider this matter carefully. Each situation and every child require a suitable solution. Planning ahead provides peace and clarity after a parent's death, which is crucial for the well-being of the children.

This article outlines the various options for arranging guardianship for children after one or both parents have passed away.

What is Guardianship and When is it Necessary?

The law distinguishes between parental authority and guardianship, both of which apply to minor children. Parents typically have parental authority over their minor children. If one parent dies, the surviving parent usually retains or assumes parental authority. If this is not the case, a guardian is needed.

When no parent with parental authority is left (for instance, if both parents have died), parental authority ceases. Another person must then take over these responsibilities, which is termed guardianship rather than parental authority.

How Can Guardianship Be Arranged?

Guardianship can be arranged in several ways, detailed below.

Option 1: A Will

A guardian can be appointed in a will, which is created with a notary. A will can specify one guardian or two co-guardians. It can also designate a "reserve guardian" in case the initially appointed guardian cannot, does not want to, or is not allowed to act as a guardian.

The will can assign guardianship to each child or for all children collectively. It can also include further wishes, such as the desire for the children to be raised in one family. Additionally, a reward for the guardian(s) can be included.

Other arrangements can also be made in a will, such as appointing an executor or a testamentary administrator. A testamentary administration ensures the children's inheritance is managed until a chosen age (for instance, 21 years), preventing them from spending their inheritance unwisely at 18. An executor handles the settlement of the estate as per the deceased's wishes.

A will thus goes beyond appointing a guardian, encompassing various aspects based on the parent's wishes.

Option 2: Guardianship Register

Since April 1st 2014, it has been possible to appoint a guardian for minor children without visiting a notary. This can be done by making an entry in the guardianship register. The application can be submitted digitally via the court's website (www.rechtspraak.nl). However, the guardianship register has several limitations compared to a will:

· The guardian appointment must be made per child and does not automatically apply to all children, though the same person can be appointed for each child.

The child’s DigiD is needed, meaning only already-born children can have a guardian appointed this way. Unborn children cannot be included.

· The guardianship register is public and can be consulted by others, unlike a will, which remains private until death.

· The form used for the guardianship register does not allow for rewards or additional wishes to be included.

· The guardianship register only addresses the appointment of a guardian, not other inheritance matters (such as survivorship arrangements, testamentary administration, or an executor).

· No more than two guardians can be appointed in the guardianship register, and reserve guardians cannot be named.

· Filling out the guardianship register does not provide legal advice on the appointment.

Option 3: The Court

If no guardian has been appointed, the court will appoint one when parental authority is missing. In cases of disagreement over guardianship, the court can seek advice from the Child Protection Board. The court may appoint a certified institution as a guardian if necessary. Parents cannot appoint institutions as guardians, only individuals.

Important Considerations

A parent does not need to have parental authority at the time of appointing a guardian in a will or guardianship register. The appointment only takes effect if the parent had parental authority at the time of their death.

Who Cannot Appoint a Guardian?

Only the child's parent can appoint a guardian. If a non-parent has custody along with the child's parent, the non-parent automatically becomes the guardian upon the parent's death but cannot appoint a guardian themselves.

One Guardian or Two

Up to two co-guardians can be appointed. A will can also designate reserve guardians. Co-guardians are jointly responsible for the children's support. A single guardian does not have this obligation. It might be wise to adjust the guardianship appointment accordingly.

Multiple Guardianship Appointments

If multiple guardianship appointments are made, such as in both a will and the guardianship register, only the most recent appointment is valid.

After Death

If a guardian has been appointed and both parents with custody are deceased, guardianship is not automatically established. The guardian must declare their willingness to act as guardian, a declaration made at the court in the child’s place of residence within 14 days of being officially notified. This period cannot be extended. If the declaration is not made in time, the court will appoint a guardian, potentially the same as the one named in the will or guardianship register.

Arranging a meeting with Westport Notarissen

Please do not hesitate to contact Westport Notarissen for more information on the matter of appointing a guardian or a financial administrator and to schedule an exploratory appointment.

During this appointment, we can precisely determine what is needed in your case.