GUARDIANSHIP BOARD DECISIONS
YEAR 2022
| Date of Decisions | Case Summary | |
| 1. | Application (12/1/2022) |
Subject was a man aged 82 with mixed-type dementia. Subject was hospitalized for a prolonged period of 7 months. During his hospitalization, Subject was assessed as a mentally incapacitated person. His son refused to arrange for Subject’s discharge due to loss of Subject’s denture by the hospital during hospitalization while he was claiming for compensation. Medical doctor of the hospital made an application wishing to arrange for Subject’s discharge and future accommodation. Following Subject’s discharge about 10 days after the application was made, Subject had no other needs that required guardianship. The applicant withdrew the application and the case was closed. (Uploaded on 25/5/2023) |
| 2. | Application (21/2/2022) |
Subject was a man aged 68 who had a cerebral vascular accident. Subject had two landed properties in Hong Kong and another one in mainland China. There were conflicts and disputes between Subject’s niece and girlfriend over his assets in both places but both of them failed to provide adequate care. Subject’s niece was suspected to have misappropriated money given to her by Subject for safe custody and refused to transfer the money back to Subject’s account, alleging that she invested Subject’s money for him. Subject’s girlfriend was living in one of his properties but failed to provide care to him. Upon the application by the social worker, guardianship was granted with the Director of Social Welfare appointed as the guardian. (Uploaded on 25/5/2023) |
| 3. | Review (8/3/2022) |
Subject was a man aged 92 with vascular dementia, who was under guardianship since 2017. Originally his wife acted as his guardian but was replaced by Director of Social Welfare when in 2019, after the guardianship order was just renewed in 2018 appointing her to continue, she was found to have made unauthorized withdrawals from his bank account above the authorized limit, and rendered herself in financial conflict with Subject. Her representing lawyers presented to the Board her justification that Subject had personally instructed her to make those withdrawals, she was willing to repay the unauthorized sums to Subject’s sole name account (which she did afterwards) and she hoped to continue as the guardian. However, the Board considered that the wife should have known that the Subject was mentally incapacitated and hence did not accept her argument that she acted under the mentally incapacitated person’s instructions. Furthermore, her financial reporting was not satisfactory. Following the appointment of the wife as the Committee of the Estate by the High Court under Part Ⅱ of the Mental Health Ordinance (Cap. 136) (“Committee”) in 2021, an early review application was filed requesting to cease the guardianship order before its expiry. Having considered the history of the case and the fact that Subject’s welfare plan was not yet settled, the Board refused to discharge the guardianship order prior to its expiry, but was prepared to re-consider the case after a longer period of observation. The wife was disappointed but was encouraged to settle outstanding matters first, such as to complete the home restoration of Subject and seek support from the delegated guardian on completing the Committee forms, so that she would not commit further errors in financial reporting. In 2022, the Board reviewed the guardianship order again upon its expiry. Pursuant to Subject’s wishes, he was restored home and his condition had improved since then. Wife developed a good rapport with the delegated guardian and with her help understood how to complete the Committee forms. Wife understood that, after the guardianship order was discharged, as his wife and the Committee, she remained responsible for caring for Subject and agreed to seek help if she encountered future difficulties. With all outstanding matters settled, the Board discharged the guardianship order. (Uploaded on 25/5/2023) |
| 4. | Review (15/3/2022) |
Subject was a woman aged 87 with vascular dementia. Subject had four children. They were embroiled in conflict with three of them in one group against one daughter. The two groups disagreed over Subject’s care plan and whether to commence an application under Part Ⅱ of the Mental Health Ordinance (Cap. 136) (“Part Ⅱ application”). One child applied to be the guardian to mobilize the Subject’s savings, but Director of Social Welfare was appointed as her guardian instead to safeguard Subject’s interests in view of the serious family conflict. After being received into guardianship for one year, family members still held different views over Subject’s accommodation, whether to make the Part Ⅱ application, and were not on speaking terms. Despite the Part Ⅱ application having been made subsequently and the Subject had no cash to mobilize, the guardianship order was renewed for 3 years as the Part Ⅱ application was contested by family members and the family was still in dispute requiring the guardianship to continue. (Uploaded on 25/5/2023) |
| 5. | Review (16/3/2022) |
Subject was a woman aged 43 who had a cerebral vascular accident in 2018, and was subsequently diagnosed with vascular dementia in 2020. Guardianship order was first granted to Director of Social Welfare with the power to mobilize her savings since 2021, while Subject was being cared for at home and receiving regular physiotherapy and exercise training. At an earlier assessment by the clinical psychologist, Subject showed neurocognitive difficulties after stroke with no salient depressive or anxiety symptoms. However, at the review hearing, her brother suddenly revealed that Subject was getting more withdrawn and slightly depressed as if she was giving up, and he had immediately arranged online medical consultation with her treating doctor at the hospital and wished to receive further advice from the guardian in this respect. Her psychiatric needs were discussed. The Board and the guardian showed appreciation and support for the timely attention and efforts of the brother to notice and alert others of Subject’s needs. The guardian indicated that further discussion and requisite follow-up with the brother would be made. With the parties’ agreement, the guardianship order was renewed for 3 years with Director of Social Welfare continuing to act as her guardian. (Uploaded on 25/5/2023) |
| 6. | Application (16/3/2022) |
Subject was a woman aged 77 with Alzheimer’s disease. She was divorced, her only relatives in contact were her nephews and nieces. After a previous hospitalization, she was discharged to a care home in 2020 on a temporary basis because she had weak self-care ability. She was then restored home in 2021, when she sustained a fall and had to be hospitalized again. After she recovered, she was ready for discharge. The medical social worker of the hospital approached her relatives to discuss her discharge and welfare plan. They were reluctant to agree to Subject’s discharge to a private old age home prior to being offered a subvented placement and claimed they were unable to find a suitable care home despite their efforts. They expressed that they were unwilling to provide financial support for Subject. Eventually the medical social worker applied for guardianship so that Subject’s discharge and welfare plan could be arranged for her benefit, and her relatives did not object. The Board granted the guardianship order with Director of Social Welfare acting as guardian. (Uploaded on 25/5/2023) |
| 7. | Application (24/5/2022) |
Subject was a woman aged 84 with vascular dementia. She has two sons and one daughter. The Subject had been living with her mentally handicapped elder son and taken care of by him and a part-time care helper, as well as the younger son who claimed he also played a caring role. In fact, younger son only appeared at Subject’s place periodically allegedly causing nuisance to Subject and elder brother and acting with hostility to the helper, causing the latter to resign. As the elder son could not take care of Subject single-handedly since then, and the younger son refused to admit Subject to an old age home, the daughter applied for guardianship in order to decide on Subject’s accommodation. Younger son did not oppose guardianship, but objected to Subject being admitted into an old age home as he claimed he would look after Subject at home. The Board found the alleged care by younger son lacked detail and was unreliable. Considering that any power given to the daughter would be disputed by the younger brother, the Board decided to appoint the Director of Social Welfare as guardian to arrange Subject’s accommodation. (Uploaded on 25/5/2023) |
| 8. | Application (30/6/2022) |
Subject was a woman aged 83 with vascular dementia. The Board appointed one of her sons as guardian for mobilizing her bank savings for her maintenance in 2021. When the guardianship order came up for review, the guardian expressed that he had difficultly continuing because he felt the financial reporting requirements were too onerous. The Director of Social Welfare was prepared to step in as the public guardian to take up the role. However, at the last minute, another son proposed to take up the guardian role. After investigating his suitability, the Director of Social Welfare supported his appointment to replace his brother. It was considered better for a family member to act as guardian if someone suitable could be found. The guardianship order was therefore renewed with another son of Subject acting as guardian. According to section 59R(1)(b) of the Mental Health Ordinance, the Board decided to renew it for one year only in view of a new guardian assuming the post. (Uploaded on 25/5/2023) |
| 9. | Application (29/7/2022) |
Subject was a woman aged 100 with Alzheimer’s disease. The social worker of her care home saw serious conflict among the relatives of Subject in suspicious circumstances and decided to file a guardianship application to safeguard her interests. In the social investigation, it transpired that Subject had different camps of relatives who all claimed they enjoyed close relationships with Subject in the past despite having lost contact in recent years with her and some of them were based overseas. One set of relatives took Subject to a law firm to make a will in 2021 benefiting themselves but the circumstances were suspicious. The applicant (social worker) observed that Subject was emotionally disturbed upon seeing the said relatives. The Board appointed Director of Social Welfare as guardian and recommended it to make an urgent application to the Court under Part Ⅱ of the Mental Health Ordinance to further investigate into the property and affairs of Subject and to seek other protective measures, including a statutory will, to safeguard Subject’s interests. (Uploaded on 25/5/2023) |
| 10. | Review (25/8/2022) |
Subject was a woman aged 84, with vascular dementia. The Board appointed her only son as guardian in 2022. Within one month, Director of Social Welfare reported that the son had been under a bankruptcy order till the end of the year which was not disclosed by him to the social worker during the social investigation into his suitability. The Board reviewed the guardianship order and replaced him with Director of Social Welfare, even though he proposed his wife to be the new guardian. The outgoing guardian objected, stating that he resisted outside interference into his family and would rather discharge the guardianship than have the public guardian appointed. He threatened the Board that if the public guardian was appointed, he would abandon Subject and would not even bother with her burial after her death. He did not offer any substantive reason for his strong objection. After considering his representations, the Board believed (i) the son and his wife shared the same household and would be affected by the bankruptcy order and there was no other family member in Hong Kong who was suitable to act; (ii) the outgoing guardian’s response to the matter was unsatisfactory and undermined the trust in his feelings for the Subject’s well-being; (iii) he withheld information about his bankruptcy in the first place; and (iv) the interests of the Subject would not be adversely affected by his replacement by the public guardian. The Board decided to renew the guardianship order for one year, to enable the public guardian to take over and review the whole situation, while not ruling out family members’ opportunity to apply to resume the guardianship if the future situation allowed. (Uploaded on 25/5/2023) |
| 11. | Application (6/9/2022) |
Subject was a man aged 64 with mixed-type dementia. The son applied for guardianship because he held a different view from the treating doctors (surgeons) of Subject about the urgency of the surgical operation on Subject’s hernia. While the surgeons believed the surgery could wait and had concerns about its side-effects, the son and wife of Subject preferred the surgery to proceed as soon as possible. The son claimed that if he was appointed as guardian, he could give medical consent to the surgeons on behalf of Subject and then be added to the queue for hernia surgery sooner rather than later. The application was not opposed by the surgeons. The Board believed that a mentally incapacitated person should not be deprived of the treatment merely because he lacked capacity to consent as envisaged by section 59ZB(3)(a) of the Mental Health Ordinance. The Board agreed to appoint the son as guardian so that Subject could be added to the queue if it was considered appropriate in the opinion of the surgeons, but emphasized that the guardian has a duty to pursue the best interests of Subject with the benefit of medical advice. The son was appointed as guardian in order to play a proper role in the medical decision-making and expedite the waiting time for Subject’s surgery, if it were to proceed. The Board made it clear that granting guardianship did not mean that it has authorized the surgery to take place in disregard of any complications and side effects that the surgeons reveal to the guardian or that the Board had relieved the surgeons from their clinical obligations to their patient. The Board also reminded the parties that receiving Subject into guardianship is the last resort and is only required to the extent of enabling the guardian to exercise the relevant power to give consent, so that the parties should apply for an early review to discharge the guardianship if the situation change. (Uploaded on 25/5/2023) |
| 12. | Application (4/11/2022) |
Subject was a woman aged 89 who had a cerebral vascular accident. The son made the application in order to mobilize her savings as well as to handle the pension receivable by Subject under the civil service’s Widows and Orphan Pension Scheme. Subject’s three sons were on good relationship and had no disagreement over Subject’s care and accommodation plan and they supported the application which was made mainly to handle Subject’s financial matters. The applicant was appointed as the guardian. (Uploaded on 25/5/2023) |
| 13. | Application (23/12/2022) |
Subject was a woman aged 72 with vascular dementia. Financial abuse by her male friend was suspected when Subject was taken to the bank by him to withdraw a significant amount of money up to six-digits. As Subject appeared not be able to answer questions without the help of the male friend, a bank teller was put on guard. After taking Subject aside to perform a Know-Your-Client questionnaire which Subject failed to complete, the bank staff became suspicious and informed Subject’s contact person, one of her daughters. Subsequent investigation revealed that money of Subject was withdrawn from other bank accounts of Subject on the same day, but the other banks did not suspect any wrongdoing. One of her daughters filed applications for an emergency guardianship order under section 59Q of the Mental Health Ordinance to protect Subject. As a guardianship application under section 59M was made at the same time, a guardianship order for one year was granted to the proposed guardian in order to protect Subject against further financial abuse, but the emergency guardianship application was dismissed at the hearing because the banks were already alerted and safeguards against further withdrawal were in place. It transpired that the male friend was an ex-tenant of Subject who then moved out and disappeared. (Uploaded on 25/5/2023) |
| 14. | Application (30/12/2022) |
Subject was a woman aged 86 with mixed-type dementia. Apart from her savings in Hong Kong, Subject also received pensions from Mainland China through monthly autopay to her bank account in China. Her son filed an application wishing to mobilize Subject’s savings in Hong Kong as well as in Mainland China. The son noted that the guardianship order did not have extra-territorial effect but wished to produce it to the Mainland Authorities to show the status of Subject after the guardianship order is made. The Board noted such intended disclosure and reminded the proposed guardian to report back the outcome after he made efforts on his own to enquire from mainland Chinese authorities. Guardianship order was meanwhile granted with the son as the Subject’s guardian to mobilize the Subject’s savings in Hong Kong. (Uploaded on 25/5/2023) |
