Who will take care of your child when you're gone?

Historically, if you wanted to designate a guardian for your child in case something should happen to you, it had to be done by will. Today, a new option is available which makes this process cheaper and easier: appointing a guardian via the parental authority register.

As a parent in the Netherlands, you want to know that if something happens to you, your child will have someone to protect their best interests. However, until recently the only way that a parent could designate a guardian was to state this in their will.

Appointing a guardian via the parental authority register
Since April 1, 2014, it has been possible to designate a guardian for your child via the parental authority register. This second option makes the process easier and cheaper – but is available only in Dutch. Visit the parental authority register

With the parental authority register, parents can appoint a guardian by submitting an online request, or completing a form in writing and posting that form to a district court. Entering a name into the parental authority register costs nothing, however you will need to submit certain documents together with the form, and you will need to pay for the documents you receive from the municipality.

What to do if you have already made a will and appointed a guardian?
If you have already appointed a guardian in your will, this can be replaced by a guardian’s instruction via the authority register. It is therefore not necessary to delete the guardian’s instruction from your existing will.

Always remember: the last instruction given will result. This means that if you first made a will in which you appointed person A as guardian, but you later appointed person B as guardian via the parental authority register, then the last instruction will apply. In the example above, this means that person B would become the designated guardian.

What happens if there are multiple guardians?
It is also possible to appoint two guardians. In fact, it is not unusual for parents to appoint one or two guardians together. If you, as parents, cannot come to a choice by mutual agreement then each parent is also free to choose the guardian(s) independently. If both parents die at the same time and you have appointed a different guardian for your child than the other parent, then the judge will make a choice between the various guardianship instructions.

Who will have authority over your child if you die and you have not appointed anyone as guardian?
If you and your partner have joint authority over your child and you have not designated a guardian, then in the event of your death your partner will retain the authority over your child. In principle their parental authority will simply continue.

In the event that you have exclusive authority over your child, then if you die without appointing a guardian, a judge will determine who will henceforth have authority over your child. The other parent can submit a request to obtain authority and the judge may (understandably) prefer the other parent in his choice. However, this does not imply that the other parent will always obtain the authority; after all, the judge may decide that a third party will be given authority if this is in the interest of the child.

What if you hold joint authority with someone other than the parent? 
If you exercise joint authority together with a person who is not the child’s other parent (step-parent) and you die, their authority ends. However, they will continue to exercise custody of your child by operation of law.

It is possible for the other parent to obtain authority by submitting a request – but they will not have a preferential position. The judge will instead try to continue the existing family situation for the child.

TIP: More can be arranged through testament
While appointing a guardian via the parental authority register is a cheaper alternative, it has a number of disadvantages compared to a guardian’s instruction made by will.

For example, as a parent, you can give instructions to the guardian in your will regarding the care for your children and how to deal with your estate. In addition, you can arrange other relevant matters in relation to your children, including financial issues. For example, you can determine until what age the assets of your children should be managed and by whom. The person who manages your children’s assets does not need to be the same as their guardian.

Get advice you can trust
Guardianship is a challenging issue to consider, and the decisions you make may impact your children’s futures. 

This article was originally published by DutchNews.nl on 21 February 2019 and authored by Dylan Bertsch. Dylan Bertsch is a specialist in family law and inheritance for GMW lawyers, and is a contributing expert on Legal Expat Desk. He pays particular attention to the interests of children.