FREQUENTLY ASKED QUESTIONS

Part I - Jurisdiction of Guardianship Board

Guardianship Board and Secretariat

1. Does the Guardianship Board have social workers on its staff?
   No, the Secretariat of the Guardianship Board consists of the Chairperson, the Secretary to the Board, a Personal Secretary, an Assistant Secretary to the Board and an Office Assistant. The Secretary to the Board has statutory duties under the rules to make administrative arrangements for hearings.
    
2. What is the Guardianship Office of the Social Welfare Department?
   It co-ordinates the service provided by the Social Welfare Department to mentally incapacitated adults in relation to guardianship matters, including the provision of social enquiry reports.
    
3. Is the Guardianship Board a government body?
   No, the Guardianship Board is a statutory body, which is independent from the Hong Kong Government, and the Social Welfare Department but subvented by the Labour and Welfare Bureau.

What is mentally incapacitated persons

4. What kind of persons will be the subject of a guardianship application?
   In general, there are four types of disabilities of mentally incapacitated persons that are relevant to guardianship. These are: -
   • dementia / Alzheimer's disease / Major cognitive impairment 
   • mental handicap
   • mental illness, or
   • acquired brain damage through an accident or illness, such as a stroke.
      
5. Would a mentally handicapped orphan under 18 years old, be suitable for guardianship?
   No. The guardianship law only applies to adults over the age of 18 years. Children under 18 years are dealt with under the Protection of Children and Juveniles Ordinance (Cap. 213).
    
6. Does guardianship apply to an autistic person with an IQ score more that 70?
   Yes. Autism may be regarded as a“disorder or disability of mind”which is part of the definition of“mental disorder”in the Mental Health Ordinance.
    
7. Would guardianship apply to a person suffering from anorexia nervosa?
   Anorexia nervosa may be classified as a mental illness, or as “any other disorder or disability of mind”, both of which are mental disorders under the Mental Health Ordinance.
    
8. Can a person suffering from drug or alcohol addiction come under guardianship?
   A person is not regarded as suffering from a mental disorder just because he is suffering from drug or alcohol addiction. Promiscuity or sexual deviancy is also excluded by the law. However, if such a person is also suffering from a mental disorder or handicap, an application for guardianship could be made.
    
9. Can the Guardianship Board make a guardianship order for a mentally incapacitated person who is being tried for a criminal offence? 
   No. The magistrate or judge of the Court of First Instance may order a person into the guardianship of the Director of Social Welfare, or a person authorized by the Director of Social Welfare, under Part IIIA of the Ordinance. The Ordinance allows the magistrate or judge to grant similar guardianship powers to the guardian.

Mentally handicapped adults and parents 

10. Will guardianship takes away the parents' “natural” parental right over their adult mentally incapacitated children?
    Since the parent of a mentally handicapped adult has no legal parental powers or rights, there is no question of taking away any rights. Once the mentally incapacitated person reaches 18, the law presumes that he has the capacity to make his own lifestyle and financial decisions.
     
11. Some parents of mentally handicapped adults think that they must apply for guardianship now in order to have someone to take care of those adults after the parents die. Is this necessary? 
    Not necessary. These parents have genuine concerns about passing on the responsibility for their mentally handicapped sons and daughters before the parents become too old to take care of them or before they die. The Guardianship Board has to consider if there is a less restrictive or intrusive mechanism to guardianship, and also whether there is a need for guardianship at this time. The parents may make a will appointing trustees to take care of the money or property that they leave to the mentally incapacitated person. The parents cannot appoint a guardian by will to take care of the mentally incapacitated adult after their death. However, if another adult daughter or son or relative already shares the responsibility for taking care of the mentally incapacitated adult and protecting his or her interests, and agrees to continue to take this responsibility, there may be no need for a guardianship application at this time or in the future.
    
    If parents are getting older, and finding it hard to cope with the needs of their mentally handicapped son or daughter, or there is a family dispute between the siblings over who will take responsibility for the mentally incapacitated person, then it may be appropriate to make the application now. Each case and the timing of the application will depend on its own facts.
     
12. Is there a need for guardianship for a mentally handicapped adult with no parents, who is under the care of a relative?
    If the mentally handicapped adult is being properly taken care of and decisions are being made in his best interests, then guardianship may not be necessary. If another relative, social worker or doctor thinks that this relative is not promoting or advocating for their interests, and not taking proper care of them, then they may file a guardianship application.
     
13. Can a mentally handicapped person be placed in a residential home without consent from his/her“legal”guardian?
    If the mentally handicapped person is not objecting to the placement, he/she can be placed in a residential home without the consent from legal guardian.

Social workers and the need for guardianship

14. Can social workers arrange welfare services for a mentally incapacitated adult without a Guardianship Order?
    Yes, provided the services are in his best interests and the mentally incapacitated adult has no objection and is co-operative. But, for example, if a dementia patient does not allow the home helper to offer personal care, or refuses to go to hospital for medical treatment, guardianship can provide a structure for taking care of his welfare. 

Appointees and finances 

15. Does "mentally unfit to make statement" mean the same as being mentally incapacitated?
    Not necessarily. A person may not have the capacity to make a statement about his social security payments but be able to make a decision on minor medical treatment, or on his living arrangements. A medical certificate that a person is“unfit to make statement”would not be enough evidence of incapacity for the Guardianship Board.
     
16. Is it only a guardian who can manage the mentally incapacitated person's finances?
    Obviously, informal arrangements can continue where a trustworthy relative or professional, who has no conflict of interest, manages the finances in the best interests of the mentally incapacitated person. If informal arrangements do not work, e.g. the bank has stopped the mentally incapacitated adult from accessing his account, and if other grounds for guardianship are met, an application for an order appointing a guardian with limited financial management powers can be made. Application can also be made to the Court of First Instance for the appointment of a person as“committee of the estate”to manage the property and affairs of a mentally incapacitated person under Part II of the Mental Health Ordinance, where the finances exceed the limit of the Guardianship Board's jurisdiction (the 4th quarter of 2023 is HK$20,000 per month).