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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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