Taking care of a mentally incapacitated person: Guardianship or Committee
The Order appointing a Committee
- If the Court is satisfied that the person concerned is incapable, by reason of mental incapacity, of managing and administering his/her property and affairs, the Court may appoint a committee of the estate of that person for the maintenance or other benefit of him/her and his/her family and for administering his/her property and affairs. The Court also has the power to make such orders and give such directions and authority as it thinks fit for such purposes and, in particular, may for those purposes make orders or give directions or authority for:
- the control and management of any property of the mentally incapacitated person, including such orders, directions or authority in respect of the transfer or vesting of property or the payment into or lodgment in the Court of money or securities;
- the sale, exchange, charging or other disposition of, or dealing with, any property (including the business premises) of the mentally incapacitated person;
- the acquisition of any property in the name or on behalf of the mentally incapacitated person;
- the settlement of any property of the mentally incapacitated person, or the gift of any property of that person to any other person;
- the execution for the mentally incapacitated person of a will making any provision (whether by way of disposing of property or exercising a power or otherwise) which could be made in a will executed by that person if he/she were not mentally incapacitated;
- the carrying on by another suitable person of any profession, trade or business of the mentally incapacitated person;
- the dissolution of a partnership of which the mentally incapacitated person is a member;
- the carrying out of any contract entered into by the mentally incapacitated person;
- the conduct of legal proceedings in the name of the mentally incapacitated person or on his/her behalf;
- the reimbursement out of the property of the mentally incapacitated person, with or without interest, of money applied by any other person either in payment of the mentally incapacitated person's debts (whether legally enforceable or not) or for the maintenance or other benefit of the mentally incapacitated person or members of his family or in making provision for any other person or for any purposes for whom or for which he/she might be expected to provide if he/she were not mentally incapacitated; and
- the exercise of any power (including the power to consent) vested in the mentally incapacitated person, whether beneficially, or as guardian or trustee, or otherwise.
- Once appointed, the committee must operate independently and must not be influenced by opinions from other relatives of the mentally incapacitated person. Further, the committee is subject to the supervision of the Court and, if necessary, may seek direction from the Court as to how the property and affairs are to be managed.
- Unlike a guardianship order, which contains a fixed term for the guardianship (one year for the first appointment and not more than three years for subsequent renewal), an order appointing a committee does not impose a fixed term. This is consistent with the idea that the committee is to operate independently, though under the supervision of the Court.
- Since the prime objective of the appointment of a committee is to preserve the value of the property of the mentally incapacitated person, the committee is required to file annual accounts of the estate of the person to the Court.
- It should be pointed out that while a committee does not have the power to authorize or consent to any medical or dental treatment for the mentally incapacitated person, this does not mean that the mentally incapacitated person would be helpless if urgent medical treatment is required. The Mental Health Ordinance (Chapter 136 of the Laws of Hong Kong) provides that “treatment by a registered medical practitioner or registered dentist may be carried out in respect of a mentally incapacitated person...without consent...if that registered medical practitioner or registered dentist intending to carry out or supervise the treatment considers that as a matter of urgency that treatment is necessary and is in the best interests of the mentally incapacitated person”. For non-urgent treatment, the committee can make an application to the Court anytime for consent to the carrying out of special treatment.