Writers: IU Ting Kwok
, LI Rosanne Wah Hei
Few people are aware that persons suffering from Alzheimer's disease, dementia, etc. can be provided with guardians appointed under the Mental Health Ordinance (Cap. 136). The Guardianship Board, a statutory body which operates under the Ordinance, appoints guardians for persons aged 18 years and over who are suffering from mental handicap or mental disorder, e.g. mental illness, stroke, Alzheimer's disease, dementia or brain damage.
The Board conducts hearings to make guardianship orders which give the guardian legal power to make important decisions for the person concerned, including the place of residence, medical treatment, occupation, education and training. The guardian may also be granted the power to hold, receive or pay a limited sum of money on that person’s behalf for the maintenance or benefit of that person.
The Guardianship Board will only make a guardianship order if it is satisfied that:-
1. the person concerned has a mental disorder or mental handicap of a nature or degree, which warrants his/her reception into guardianship;
2. the mental disorder or handicap limits him/her in making reasonable decisions in respect of all or a substantial proportion of the matters which relate to his/her personal circumstances;
3. his/her particular needs may only be met or attended to by guardianship and that no other less restrictive or intrusive means are available in the circumstances; and
4. it is in the interests of his/her welfare or the protection of others that he/she should be received into guardianship.
The Guardianship Board will appoint the proposed guardian to be the guardian of the mentally incapacitated person if it is satisfied that the proposed guardian is suitable, capable and willing to act as a guardian to take care of the person concerned and that the interests of the person concerned will be promoted by the proposed guardian.
If the Guardianship Board is of the view that there is no appropriate person available to be appointed as the guardian, the Guardianship Board may appoint the Director of Social Welfare as the guardian of the mentally incapacitated person.
If the Director of Social Welfare is appointed as the guardian, a public officer on behalf of the Director of Social Welfare will make decisions for the person concerned on behalf of the Director of Social Welfare.
It must be noted that not every mentally incapacitated person is in need of a guardian. As stated above, the Guardianship Board will only appoint a guardian if it is satisfied that the person’s needs cannot be met by other means. For instance, if there already exists an effective informal arrangement to take care of the person’s affairs, a guardian may not be necessary.
However, if there are conflicts within the person’s family as to who shall be responsible for the person concerned, or there are disputes as to the care and treatment of that person, it may be necessary to appoint a guardian in order to safeguard the best interest of that person.
Further, if the person concerned is in danger or is likely to be maltreated or exploited, the Guardianship Board may make an emergency guardianship order to protect him/her.
If you are a party to the guardianship application and are not satisfied with the Guardianship Order or the decision of the Guardianship Board, you may appeal to the High Court on a question of law on the Guardianship Board’s proceedings, or apply to the Guardianship Board for review of the guardianship order. If you are not a party to the guardianship application but have a genuine interest in the welfare of the person concerned, you may also apply for review or directions.
A party or interested person may also apply to the Guardianship Board to seek clarification on the nature and extent of the order or on the exercise, extent and duration of the guardian’s powers and duties.
Application forms and procedures for guardianship can be downloaded from the Guardianship Board’s website. You may also contact the Board’s Secretariat if you have any queries.
For more information, please visit the Guardianship Board’s website at http://www.adultguardianship.org.hk/