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Old 21.06.2021, 09:11
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Adoption of grandchild

I am in the process of drafting a new Will for my daughter, who is 50 yo, single and has a child conceived by IVF. (Yes I know, illegal in Switzerland but very common here in UK, and he has UK & Swiss passports, no problem).

Because I am entitled not just to a U.S. government retiree pension, but my spouse (now deceased) and any minor children of. mine get health insurance and financial support through university, if my daughter were want me to not just to have guardianship but parental status through adoption if she does not survive and I do.

The question: (I am a retired NY lawyer, among other things) I plan to include a clause on adoption and mention all three jurisdictions; England, Switzerland and USA. But in actuality a US adoption would not be a good idea: it would automatically naturalise him and make him and his trust fund (he is autistic and has an English VPT) subject to FATCA and PFIC and worse.

Can anyone compare Swiss and English adoption practice involving grandparents where no father exists (not dead, legally nonexistant)?
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Old 21.06.2021, 10:04
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Re: Adoption of grandchild

In the briefest form: in Switzerland, an adoption is absolute. In other words, from the Swiss perspective, adoption cannot be done half-way, or in any form such that it is valid here but not there, or under these circumstances but not those, or for this purpose but not for another.

This means that all the legal rights and obligations that were, between the parent giving the child up for adoption and the child to be adopted, are severed and cease fully. It follows, therefore, that the death of the former parent, after the adoption, has no legal bearing on the child who has already been adopted. In the place of the severed parent-child relationship, the adoptive parent and the child being adopted hold the full set of rights and obligations towards each other, exactly as fully as if the adoptive parent had been the biological parent.
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Old 21.06.2021, 11:14
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Re: Adoption of grandchild

The question wasn't about adopting from the existing parent, but writing a will stipulating adoption in the case of the parent's death.

I researched this a bit and my conclusion was that while you can write it in the will as part of the instructions of what to do after death, it is not legally binding on social services who would become the guardian of the orphaned child in the event of the death of the parent.

But if the grandparent is in Switzerland, they are willing, and there is no other obvious familial candidate, they would almost certainly become guardian. From what I've seen things like health insurance do not specify "children" but "legal dependents under the age of X", which would then be covered.
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Old 21.06.2021, 12:02
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Re: Adoption of grandchild

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The question wasn't about adopting from the existing parent, but writing a will stipulating adoption in the case of the parent's death.

I researched this a bit and my conclusion was that while you can write it in the will as part of the instructions of what to do after death, it is not legally binding on social services who would become the guardian of the orphaned child in the event of the death of the parent.

But if the grandparent is in Switzerland, they are willing, and there is no other obvious familial candidate, they would almost certainly become guardian. From what I've seen things like health insurance do not specify "children" but "legal dependents under the age of X", which would then be covered.
Thanks for that. I know from Belgian law school the difference between plenary and simple adoption in the civil law. But of course in Britain what they have is adoption full stop, or guardianship/fostering.

My question that I thought members of this forum might answer is which is the procedurally easier country, England or Switzerland, where the child and the grandparent share Swiss nationality, the grandfather (me) is American and the grandson British. The qualification for jurisdiction in the UK is either domicile or presence in the country one year. Switzerland considers me domiciled in Valais, and HMRC (at least) "deemed domiciled" in England or Wales.

In the USA adoption is a business. But as I said it would be financially disastrous to adopt there because of citizenship attribution and consequent foreign trust taxation and reporting, and we wouldn't live there anyway.

In real life, while the child has 8 cousins in the UK and USA none of his uncles and aunts would want to deal with his autism however high-functioning. And he's lived with me since birth.

As you note, a parent can only state a preference for guardianship in a Will. But the child can certainly talk. He's bilingual, 8 y.o., with his French somewhat better than his English which you'd expect since he's attending a French school. He speaks French to me, English to his mother (OPOL system, from birth).

But once you mention "adoption" in England the Social Services want to get involved. It could destroy the child. And they would steal his money, which is substantial (his trust fund owns 38% of their London flat which they rent out so they can live with me).

Only people who have been through the process can really answer my question I think. And hey, it's just a Will, in English style, probably legal in Switzerland too but hardly binding when it comes to appointment of parental rights. The real point here is to get the child my pension and health insurance in the case of the awful event where he loses his mother. Only adoption equivalent to that in the USA will do that.

There is an alternate guardian, a single mother who was in my daughter's class at the Lycée français in London in the 1970-80s. She comes from a famous family, for whatever that is worth. Which is that her name alone would impress a Family Court judge even if the big money in the family is held by uncles who don't get along.

BTW I'm not talking about Swiss health insurance. I have Atupri but for me its premium is just a tax: my Federal Employees Health Benefits Plan pays 90% of everything after the first $250 a year, and 100% of catastrophic costs. And then there's the NHS: I get that too.

Thus: guardianship is easy to get. Adoption not so much--and that's what is needed to get him federal benefits. If the worst happens, which is what wills are for. (I drafted my late wife's Will. It never needed to be probated until now, 4 years after her death--and only because of a med mal case.)

Last edited by Caryl; 21.06.2021 at 12:14.
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Old 21.06.2021, 12:26
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Re: Adoption of grandchild

I am also interested in how "adoption will" works in practice. I actually wanted to write a will as who would be the legal guardian of the child in case of both parents' death. I was reading (somewhere official, don't remember the exact site) that Swiss authorities can pretty much do whatever they will and are in no obligation to honour the will. Sounds scary to me :S

We were considering naming family who does not live in Switzerland and also some friends who are in Switzerland as temporary ones who could step in quickly if necessary.
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Old 21.06.2021, 12:38
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Re: Adoption of grandchild

Might be something in here

https://www.ch.ch/en/how-adopt/

Caryl, do you know what the situation would be if you did adopt regarding his trust fund, etc? Presumably you'd be managing on his behalf and I assume that would require you to report any such accounts to the IRS as you do for yourself.

I don't know if anything in here would help on the will side of things.

https://www.ch.ch/en/inheritance/

Social services, either here or in the UK, may step in if they decide you're not fit - for whatever reason/s - to be able to look after him properly. You must be getting on in years yourself if your daughter is 50 and if you get health problems, etc, down the line they may decide it would simply be too much for you to cope with.
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Old 21.06.2021, 13:00
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Re: Adoption of grandchild

I think OP needs to clarify where all the individuals reside in this story.

With further details it sounds like the child may be in the UK with their mother? And so is the OP (despite the Port-Valais location)?

In which case UK law would apply and this probably isn't the right place to ask.
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Old 21.06.2021, 13:10
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Re: Adoption of grandchild

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Might be something in here

https://www.ch.ch/en/how-adopt/

Caryl, do you know what the situation would be if you did adopt regarding his trust fund, etc? Presumably you'd be managing on his behalf and I assume that would require you to report any such accounts to the IRS as you do for yourself.

I don't know if anything in here would help on the will side of things.

https://www.ch.ch/en/inheritance/

Social services, either here or in the UK, may step in if they decide you're not fit - for whatever reason/s - to be able to look after him properly. You must be getting on in years yourself if your daughter is 50 and if you get health problems, etc, down the line they may decide it would simply be too much for you to cope with.
Needless to say I drafted the Vulnerable Person Trust (one of few kinds of trusts free of decennial and in-and-out IHT and only recipients of DLA at middle level are eligible.) I was grantor. Daughter (mother of child) is trustee. My son in SF is protector and can name successor trustees. Nobody but the ASD-affected child can benefit from the trust during his lifetime.

That wouldn’t stop a crooked judge from letting his lawyer pals take big fees from it for nothing. Happened in Surrogate Court White Plains. And WaPo did a whole series on crookedness in the DC courts. Google Mollie Orshansky, inventor of the SSA Poverty Index. She had everything planned, even bought a small apartment next to her sister’s in NYC. She wound up in hospital after a fall I think. Her family eventually found out (she didn’t answer her phone). Drove to Washington and kidnapped her. Became a slinging match between the crooked DC judges and the honest NYC ones. NY won, but the DC lawyers got to keep what they stole from her trust.

For the rest: once he’s adopted he’d get my pension and federal employee/survivor health benefits and life insurance no matter who took over guardianship later. Until he finished college. And he’s a real Alan Turing. Except he has lots of friends and girls are never far away.
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Old 21.06.2021, 23:43
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Re: Adoption of grandchild

So the case is:
Grandparent wants to adopt grandchild while the mother is still alive and able to lawfully decide and act ("handlungsfähig" in German), the father is unknown/of no concern.
Right?

The Swiss federal court ruled negatively on a very similar case in 2010.

In that case from 2010, the mother was single, age 18 when she gave birth in 2000, lived an unsteady life, changed her address frequently. The marriage was divorced in 2006 with the mother getting sole custody. She tried to commit suicide in 2006. The child was cared for by the grandparents, apparently they did a flawless job. In 2007 the mother moved closer to the grandparents (her parents) and finished an apprenticeship in their business, mother and child were in regular contact.
(An apprenticeship has significant value around here, in general it's the foundation to earn a living wage, in most professions for an entire single-earner family.)

In 2007 the grandparents applied for adoption, with both parents' consent. The courts of all three jurisdictional levels rejected the application.

The reason for the refusal given by the federal court is that, while such an adoption is generally possible, the child's wellbeing is paramount. With the mother and child in regular contact, and the mother able to be the parent, the potential for conflict is considered far too high and that's not in the child's best interest.

So, OP, your chances in Switzerland seem pretty much zero. IMHO ofc and with the caveat that IANAL.

All three countries involved have ratified the Hague Convention on Child Protection (see hcch.net)(the UK in 2003, USA 2007, Switzerland 2002). Whether that makes for the same answer to your application in all three countries, especially in the US, may be interesting to find out but I'd keep my hopes from getting high.
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Old 22.06.2021, 01:07
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Re: Adoption of grandchild

Here's Art. 297 of the Swiss Civil Code of
https://www.fedlex.admin.ch/eli/cc/2...233/en#art_297
where it states that, if both parents die, it will be the KESB (in German: Kinder- und Erwachsenenschutzbehörde) who appoints a guardian for the orphaned child.
1. If the parents have joint parental responsibility and one parent dies, the surviving parent retains sole parental responsibility.

2. If a parent who has sole parental responsibility dies, the child protection authority shall assign parental responsibility to the surviving parent or if a legal guardian is appointed for the child, to the person more suited to safeguarding the child's best interests.


Effectively, in the absence of any remaining parent, the KESB will consider a written declaration ("Sorgerechtsverfügung" in German) made by the deceased parent before her death, naming a specific other person as guardian of the child, but will also do its own research to assess the suitability of the person so named. If they deem the named person unsuitable, then the KESB will appoint its own guardian.

Oddly, there's nothing mentioned, there, about adoption, only guardianship.

With regard to adoption, note also Art. 264 d https://www.fedlex.admin.ch/eli/cc/2...3/en#art_264_d on the restrictions on age difference between the potential adoptive parent and the child to be adopted, also exceptions may be made if justified.
1. The age difference between the child and the persons wishing to adopt may not be less than 16 years and not more than 45 years.

2. Exceptions may be made if this is necessary for the welfare of the child. The person wishing to adopt must justify the exception.


There's also this broschure, by the Bundesamt für Justiz, about adoption in general:
file:///I:/Downloads/bro-adoption-d.pdf (in German)

Last edited by doropfiz; 22.06.2021 at 22:56.
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Old 22.06.2021, 01:09
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Re: Adoption of grandchild

OP, you seem to be getting some replies about adoption while your daughter is still alive, and others about adoption by you only upon your daughter's death. Could you please clarify whether you and your daughter are considering both options?
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Old 22.06.2021, 06:45
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Re: Adoption of grandchild

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OP, you seem to be getting some replies about adoption while your daughter is still alive, and others about adoption by you only upon your daughter's death. Could you please clarify whether you and your daughter are considering both options?
Seems pretty clear.

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Because I am entitled not just to a U.S. government retiree pension, but my spouse (now deceased) and any minor children of. mine get health insurance and financial support through university, if my daughter were want me to not just to have guardianship but parental status through adoption if she does not survive and I do.
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Old 22.06.2021, 12:19
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Re: Adoption of grandchild

Probably you're right, Medea, although I still stumble over exactly that paragraph. Perhaps I'm just not reading it properly.
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Old 22.06.2021, 13:54
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Re: Adoption of grandchild

Sorry to confuse. But a Will determines (in matters of assets) and suggests (in matters of child guardianship) what a person would wish to happen after her death.

This is a draft, replacing an obsolete Will. When my wife died, her "last will and testament" was dated 1999. We are just probating it now, 4 years after her passing, because (and only because) there is med mal litigation. In California and England, to mention two jurisdictions, probate is costly and trusts (or in the UK, trusts of land which are "bare trusts" and don't carry decennial IHT charges) avoid probate -- though not IHT.

My question comes down to this: has anyone gone through the Swiss adoption procedure and are the Social Services involved? I have the feeling that in the UK no authority is going to take away a child from the home he has lived in from birth against his will. And that the cash value of the adoption (and hence a guarantee that the State will never have to pay benefits until the child finishes university or reaches age 22/26, whichever comes first) would be convincing. But nobody seems actually to have had experience. And I certainly know nothing about Swiss adoption practice other than a bit about international adoption because my PhD dissertation advisor in Belgium was the world's expert on that.

Here's the text of health benefits eligibility (quite apart from NHS: one can go private and use his FEHBP insurance to pay for it): "Family members eligible for coverage under your Self and Family enrollment are your spouse (including a valid common law marriage) and children under age 26, including legally adopted children, recognized natural (born out of wedlock) children and stepchildren. A child is eligible for coverage under your Self and Family enrollment, if a state-issued birth certificate lists you as a parent of that child."

For a survivor pension: "In order to qualify for a survivor annuity under the Foreign Service Act, a child must be financially dependent on an employee or retiree at the time of death. The child must also be unmarried, under age 18, or under age 22 and a full time student (12 credit hours), or over age 18 and incapable of self support because of a disability that occurred before the age of 18. Children who qualify include legitimate children, adopted children, stepchildren who lived with the employee or retiree at the time of death, and recognized natural children. Children are entitled to survivor benefits regardless of whether or not there is a survivor spousal benefit."

As this is an ASD child it would be theoretically possible for him to get benefits for life. Except that the UK criteria for DLA are far less stringent than the SSA criteria for SSDI, which is what counts in the USA.

Last edited by Caryl; 22.06.2021 at 14:09.
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Old 22.06.2021, 22:42
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Re: Adoption of grandchild

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I think OP needs to clarify where all the individuals reside in this story.

With further details it sounds like the child may be in the UK with their mother? And so is the OP (despite the Port-Valais location)?

In which case UK law would apply and this probably isn't the right place to ask.
I agree with this.

OP, I do understand, now, that your question is about adoption as soon as possible after the death of your daughter.

However, Swiss authorities deal with people living in Switzerland, not abroad.

Also, in matters pertaining to minors, nothing in Switzerland works fast. There are very slow steps to plod through, (first Obhut, then Guardianship, then Adoption) and a lot of discussions and assessment are likely along the way.

Warning: herebelow a string of posts.
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Old 22.06.2021, 22:42
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Re: Adoption of grandchild

Would Switzerland's authorities get involved, at all?

From the Swiss perspective, the key thing that matters is who lives where. Does the grandson reside in Switzerland?

Switzerland's definition of residence is not just about any home one may own or rent in Switzerland, nor about a tax status, but about the centre-point of one's life. This thread, and those to which is links, has some explanation of what that means.
https://www.englishforum.ch/permits-...itzerland.html

Even though the boy himself is a Swiss citizen, if he lives outside of Switzerland and has citizenship or a residence permit in that other country, I cannot see the Swiss authorities becoming involved in any way, neither in determining with whom he would live, nor guardianship, nor in the actual process of adoption.

If the boy already lived in Switzerland, or if he were brought here as a minor upon his mother's death, then, yes, the KESB would automatically become involved, without a doubt.

The big, over-riding guideline, for all decisions about children in Switzerland is always the question of what would be in the child's best interests. This is the paramount yardstick. Therefore, the question is not only what is immediately best for the boy (e.g. to stay with grandfather right now) but what he would need in 3, 5 or 10 years from now. In this regard, the aging of the grandfather would definitely be a factor that would be assessed. Hence the suggestion of hiring in help, below.
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Old 22.06.2021, 22:43
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Re: Adoption of grandchild

Residence and everyday care of the boy (in German "Obhut")

In the Swiss way, the first decision of the KESB would be to determine where the boy would live.

If it could be plainly shown that the grandfather and the boy
  • ordinarily lived in the same home, in Switzerland, or else
  • ordinarily used to live in the same home abroad, but are now moving to Switzerland together,
then the grandfather is likely to be awarded residence and care of the boy (in German "Obhut"). This is not parental authority, in the sense of guardianship, but merely a determination of where the boy is allowed to live.

The KESB would very unlikely take the boy out of the home he already shared with the grandfather, unless the grandfather were deemed unfit to care for him. Age discrimination is rife in Switzerland, and age is potentially a factor that could count against the KESB allowing the grandfather to keep the child living with him, beyond the initial few weeks or months following the death of the boy's mother. In your case, OP, if your age crept up on you while the boy still needed a lot of day-to-day care, you may well be able to establish yourself as a reasonable person for continued and permanent Obhut, if you, for example, could show that you were aware of your deficits and had hired in someone to do heavy tasks around the house that you could no longer manage, and/or a tutor for the boy, and/or someone to take him out to do sport, etc.

I believe it would count in the grandfather's favour, in applying for Obhut (and later for guardianship) that he the boy needs particular circumstances and extra care, and if the grandfather could demonstrate that the boy could have the special care that he needs so much easily and effectively by continuing to stay with his grandfather, than were he to be placed in foster care or in a children's home.

All of this would be much, much easier to achieve it is already clear - by the concept of centre-point - that the grandfather and the grandson have been sharing a home, and much harder to achieve if they are deemed, effectively or on paper, to have been residing in separate homes.
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Old 22.06.2021, 22:46
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Re: Adoption of grandchild

Guardianship

Initially, the urgent guardianship would be with the KESB, by default. This would happen automatically and with immediate effect,
  • if the grandson already lived in Switzerland:
    as soon as the death of the mother were registered (happens automatically if she died in Switzerland) or if her death were registered in Switzerland from abroad by the grandfather or by the authorities abroad (some countries pass this information on to Switzerland, others don't)
  • if the grandson had been living abroad:
    as soon as he moved to Switzerland (I understand he is a Swiss citizen). It is obligatory to register as living here, within 8 days of arrival, and as he would not be able to accomplish this (since he's a minor), it would immediately be apparent that he has no guardian.

The grandfather could apply for guardianship to be transferred from the KESB to him. He would then be assessed for fitness for the task. Besides the everyday care (as in Obhut, above) the grandfather would have to demonstrate cognitive ability, language skills, and the ability to deal with authorities, doctors, schools, therapists, etc., as well as to organise the boy's everyday live, and to provide for the boy's physical, social and emotional development.

All of these kinds of criteria are likely to be assessed all the more stringently because of the grandfather's age. The grandfather would need to show that he had put plans in place for the event of his own decline in health and particularly his own death, for the boy's safety and security (e.g. all the matters of the orphan's pension, the trust fund, and the boy's uncle as trustee, etc.). If the grandfather is able prove his competence, guardianship may be transferred to him.
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Old 22.06.2021, 22:47
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Re: Adoption of grandchild

Adoption

The cases I know of regular adoption (of a baby or child whose living parents have given up the child for adoption, or of an orphan) all took very long to accomplish.

The steps included a lot of assessment of fitness for the task, then fostering the child, and then many more rounds of inspection and assessment, and psychologist's and social worker's reports, before adoption was finalised only a year or even two years later. During all this time the "Obhut" was decreed, but the legal guardianship remained with the KESB and not with the foster (and potential adoptive) parents. This long, drawn-out process was so even in those cases when everyone involved, both individual persons and the professionals working for the assessing authorities, were in full agreement that the adoption would be a good idea.

Therefore, if you, OP, as the grandfather, presented the KESB with your deceased daughter's declaration that you should be allowed to adopt, it would likely still involve some version of the above. For this lengthy interim period, you would need to prove that you were providing all that the boy needed.

This boy's needs would include such matters as:
  • a competent adult in charge (our own abilities assessed, as mentioned above)
  • everyday matters such as food, clothing and supervision.
  • his own room into which he could withdraw to be private, with a door he could close
  • demonstrable efforts by the adult in charge to ensure that he boy has/acquires a command of the local language
  • efforts to provide the boy means for him to integrate into life in Switzerland, access to medical and psychological care, including medical insurance for that (see below)
  • given the age of his grandfather, proper plans in place for after the death of the grandfather.

Even if all things are shown to be done properly, the age difference (See Art. 264 d of the Swiss Civil Code, quoted above) is still going to be a factor, and reasons would need to be presented to show why the exception (provided for in the second point, there) should be granted.

Last edited by doropfiz; 22.06.2021 at 22:57.
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Old 22.06.2021, 22:47
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Re: Adoption of grandchild

Medical Insurance

This is not relevant to the Swiss authorities if the boy lives outside of Switzerland. It is, however, obligatory for all who reside in Switzerland and would therefore also be so for the boy as soon as he lives in Switzerland. He would not be exempt, for example, because he has access to the UK National Health Insurance.

Your access to medical insurance for him, from your scheme from abroad, would become relevant to the Swiss authorities him only once you could prove
• the boy's eligibility in that scheme, and
• that your scheme provides at least as good a cover as does the compulsory Swiss basic medical cover (in German "Grundversicherung", "allgemein").

In other words, if the Swiss authorities deem the cover of your foreign medical insurer to be less comprehensive than the Swiss basic, the boy (and for that matter you, too) will still have to buy the Swiss compulsory insurance.
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