Guardianship under Vietnam laws aims to protect the legitimate rights and interests of groups that are not yet fully developed physically or mentally. There are two forms of guardianship prescribed by law: natural guardians and guardians appointed by a competent state agency, in which natural guardians can only be individuals. This type of guardianship is defined by the provisions of the guardian, the ward, and the rights and obligations of the guardian towards the ward and their property. There are potential disputes in finance or caring responsibility among people having responsibility of guardship therefore it is important to understand the order of natural guardians when life event happens that trigger the need for guardianship. Hence, having the advice form civil or marriage and family dispute lawyers with understanding of the matters is very important.
Minors (a person under 18 years old) who have lost their parents are one of the subjects of guardianship under Vietnamese law. They are considered vulnerable in the society and need to be cared for and protected. Therefore, to avoid the case that these people have no guardians when their parents suddenly die, civil law has provided a provision to determine the order of natural guardians based on their blood relationship as follows: (i) the eldest brother or sister shall be the guardian of the ward; if the eldest brother or sister fails to satisfy all requirements for acting as a guardian, the next eldest brother or sister shall be the guardian, unless otherwise agreed that another biological brother or sister shall be the guardian; (ii) the paternal grandfather, grandmother or the maternal grandfather, grandmother shall be the guardian or these persons agree to appoint one or several of them as guardians; (iii) a biological uncle or aunt of the ward shall be the guardian.
Thus, in the same order as above, the natural guardian of a minor will always be specifically identified and this person must ensure that the guardian’s conditions are fully met, including: having full legal capacity; having good ethics, and necessary means to exercise rights and fulfill obligations of a guardian; not being a person facing criminal prosecution or a person who has been convicted but his/her criminal record has been not expunged for a deliberate crime of violation of life, health, honor, dignity or property of another person; and not being a person having parental rights to minor child restricted by a Court.
In case a minor does not have a natural guardian, the commune-level People’s Committee of the place where they reside shall have to appoint a guardian. In addition, if there is a dispute between the natural guardians about the guardian or a dispute over the appointment of the guardian, the Court will appoint the guardian.
Accordingly, when a minor loses their parents, according to the law, their biological brother or sister will be their natural guardian. However, if this person does not have a biological brother or sister, the paternal grandparents and maternal grandparents will be the natural guardians of this person, and both of them have equal rights in guardianship for their grandchildren minors under the provisions of the Civil Code the Law on Marriage and Family as follows: “Paternal grandparents and maternal grandparents have the right and obligation to look after, care for and educate their grandchildren, lead an exemplary life and set a good example for grandchildren; in case a minor grandchild or an adult grandchild loses his/her civil act capacity or is unable to work and has no property to support himself or herself without a caregiver as prescribed in Article 105 of this Law, paternal grandparents, and maternal grandparents have the duty to raise their grandchildren.”
The law always respects the voluntary agreement of the involved parties in determining guardianship for minors who have lost their parents. Paternal grandparents and maternal grandparents may agree to appoint one or several of them as guardians for their minor grandchildren according to regulations. In case the two parties cannot agree on a guardian for the grandchild, this is another type of marriage and family dispute. Therefore, pursuant to the Civil Procedure Code, one of the parties can make an application to the competent district court to request the court to settle the case according to civil procedure. The court will base on the facts of the case, the conditions of the guardianship of the parties, the emotional relationship between the guardian and the ward, and the capability to ensure the best physical and mental development to decide to assign the child to whom to act as guardian. In addition, if the ward is six years old or older, the Court will have to consider their wishes during the dispute resolution process to make a decision to appoint the most suitable guardian.
In summary, Vietnam law has clear and specific provisions to determine natural guardians for minors who have lost their parents. In addition, the law also stipulates that the determination of guardians may involve the intervention of a competent state agency, namely the People’s Committee, and the Court in the event of a dispute between guardians to appoint a guardian equitably. All these regulations ensure that minors are cared for and nurtured in the best conditions for future development.
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