The following can only be a brief introduction of the legal subject concerned. Before you take any action which may have legal consequence, you should first seek advice from your own lawyer or make an appointment at any District Office to see a volunteer lawyer of the Free Legal Advice Scheme.




(817) THE GUARDIANSHIP BOARD'S SERVICE FOR MENTALLY INCAPACITATED ADULTS

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The Guardianship Board was established on 1st February 1999 under Part IVB of the Mental Health Ordinance (Cap. 136). You can visit the official website on www.adultguardianship.org.hk.

The Guardianship Board makes orders appointing guardians for adults who are unable or limited in making reasonable decisions about their personal, medical or financial affairs. This is because they have a mental incapacity, which limits their ability to make reasonable decisions about personal, medical or financial affairs.

The mental incapacity can be a mental illness, dementia, mental handicap, an acquired brain damage from a stroke or accident, or some other disability of mind.

Most mentally incapacitated persons do not need a guardian as their family, friends and service providers help them to make decisions. There is a need for a guardianship order if these informal arrangements are not working for the benefit of the mentally incapacitated adult such as:-

1. when the mentally incapacitated adult is suffering from, or at risk of physical, emotional, or financial abuse, neglect, self neglect or exploitation;
2. if the mentally incapacitated adult or other people disagree with decisions currently being made for him about his care and treatment;
3. when there are conflicts within his family, or between his family and service providers, which may result in inappropriate accommodation or a failure to get medical treatment for him;
4. when the mentally incapacitated adult objects to his proposed care or treatment, e.g. placement in a residential facility;
5. if the doctor refuses to give him non-urgent medical treatment unless he has a guardian to consent to that treatment.

In particular, the Guardianship Board can make Emergency Guardianship Orders for up to three months where a mentally incapacitated person is in danger, or at risk of maltreatment or exploitation and there is a need for his immediate protection. For more information, you may telephone the tape on "Emergency Guardianship For Abused Mentally Incapacitated Adults".

A relative, a social worker from Hospital Authority, a Non Government Organisation (NGO) or the Social Welfare Department, or a doctor can apply for a guardianship order. The service is free. The Guardianship Board promotes the interests, welfare and protection of mentally incapacitated adults. It obtains and respects their views and wishes, if that is possible, unless their views and wishes have to be overridden in their interests. It supports their right to make their own decisions whenever possible.

If this is not possible, the Guardianship Board will appoint a guardian to make decisions on their behalf. This substitute decision-maker is called a guardian. The guardian, who is usually a relative or friend, must promote the interests and welfare of the mentally incapacitated adult. If there is no other appropriate person, the Board appoints the Director of Social Welfare as guardian.

The guardian is given legal powers to make important personal decisions in support of a mentally incapacitated adult, such as his accommodation, medical treatment, attending at hospital or for education, or work. The guardian may also be given legal power to manage his money, which, as of the 4th quarter of 2018, was HK $17,000- per month.

If the mentally incapacitated adult has a lot of assets or money, then an application may be made to the Court of First Instance for an order to manage the financial affairs. A lawyer will be needed for this application and legal fees must be paid. However, that Court has no jurisdiction to appoint a guardian for the personal affairs of the mentally incapacitated adult. A guardianship application to the Guardianship Board would still need to be made for those affairs.

The Guardianship Board conducts hearings with at least three members with backgrounds such as personal experience of mentally incapacitated adults, lawyers, doctors, social workers, and psychologists. As its hearings are relatively informal, it is usually not necessary to have a legal representative.

The Guardianship Board"s decisions are legally binding even though it is not strictly a court. An appeal from the decision can be made to the Court of First Instance.

The order initially lasts for up to 12 months, and if renewed, for three years, which can be further renewed.

If you want more information about guardianship of mentally incapacitated adults please contact:

The Guardianship Board

Tel: 2369 1999

Date of amendment: 17th November 2023