FREQUENTLY ASKED QUESTIONS

Part V - Exercise of guardian's powers

1. How can a social worker find out whether the client has a legal guardian and/or to contact the appointed guardian under the restrictions of the Personal Data (Privacy) Ordinance (Cap. 486)?
   The data supplied by the applicant, or other parties are used by the Guardianship Board to discharge its statutory duties. It can also be disclosed to appropriate persons in the Guardianship Office or other relevant offices of the Social Welfare Department, Hospital Authority, and relevant NGOs’ involved in the assessment of, or provision of service/assistance to the mentally incapacitated person.
   
   The Guardianship Board is also obliged to protect the best interests of the mentally incapacitated person in obtaining medical treatment, by furnishing a guardian's contact details to the Hospital Authority, a registered medical practitioner or registered dentist.

Exercise of financial powers

2. What is the “monthly sum”?
   The“monthly sum”means a sum not exceeding the latest median monthly employment earnings, specified in the Quarterly Report on General Household Survey, published by the Census and Statistics Department. The Guardianship Board can make an order up to HK$20,000 (the 4th quarter of 2023 figures).
    
3. Can the Guardianship Board make orders to sell a mentally incapacitated person's property?
   No. An application would have to be made to the Court of First Instance (formerly the High Court) under Part II of the Mental Health Ordinance for an order relating to a mentally incapacitated person's property.
    
4. What are the duties of the guardian when he/she has been given the financial management power by the Guardianship Board?
   The guardian should open an account for the monthly income of the person concerned, and ensure that he/she keeps simple records of the expenditure, which he makes on his/her behalf. The money of the guardian and the money of the person concerned should be kept separate. The guardian has a duty to act as if he was a trustee. A trustee is a person who is legally in control of money belonging to someone else and has special duties. The guardian must be open, transparent and accountable for the monies. On a review of the guardianship order, the Guardianship Board may request to see the records to ensure that there is no financial abuse.
    
5. Can a guardian make a will on behalf of the mentally incapacitated person?
   No.

Duties of the guardian

6. What can the guardian do to implement the Guardianship Order for the welfare of the person concerned?
   A Guardianship Order gives all those involved with the person concerned an opportunity to discuss his welfare plan and management. The needs of the person concerned should be evaluated in consultation with the carer, his family and the professionals involved in his welfare. This includes assessing his service needs such as housing, medical treatment, professional services, financial support, education, employment and general care. Action should be taken to meet the needs that have been identified and to promote his interests. The guardian should actively promote and protect the interests of the welfare of the person concerned and ensure that all professionals caring for him do the same.

Post-order management

7. Who will "oversee" the appointed guardian?
   The Social Welfare Department has the statutory duty to oversee the private guardians under the Guardianship Regulations. Their staff will assist the guardians to understand and carry out their duties. The Guardianship Board also has a duty to review each Guardianship Order, at any time or before the order expires. This can be done on its own initiative, or at the request of the person concerned, the guardian, the Director of Social Welfare, any other person, including a relative, who has a genuine interest in his welfare.
    
8. How can the Guardianship Board be satisfied that the guardian is properly performing his duties?
   The Guardianship Board does not have a statutory role to ensure that the guardian is properly performing his/her duties on a day-to-day basis. That is a matter for the Social Welfare Department under the Guardianship Regulations. However, the power to review the order can be used by the Social Welfare Department, or any person with a genuine interest in the mentally incapacitated person, to bring the case back to the Guardianship Board for review or for directions if the guardian is not properly performing his/her duties. The Guardianship Board can also take the initiative to review the order itself if it has information that the guardian is not properly performing his/her duties.
    
9. If the guardian becomes unsuitable to perform his duties, what are the remedial measures and the legal implications?
   Initially the matter can be brought to the attention of Social Welfare Department as they have the statutory duty to monitor the guardian. They can initiate a prosecution under the Guardianship Regulations, if a guardian, without reasonable excuse fails to comply with the Guardianship Regulations, though this is likely to be rarely used. It is more likely that they will request the Guardianship Board to review the case, and to appoint an alternative guardian, either a relative or the Director of Social Welfare.

Conflicts between guardians and other parties

10. If a guardian is considered to have unsatisfactory performance, does he/she have a channel to explain?
    Yes. The guardian will be a party in a review and can defend the exercise of his powers to the Guardianship Board.
     
11. If the service provider and the guardian cannot reach consensus on what is good for the person concerned, who will make the decision?
    The guardian has the power to accept or reject the plan proposed by the service provider. If the service provider really feels that the decision made by the guardian is not promoting the best interests of the person concerned, the service provider can seek directions from the Guardianship Board as to the exercise of the guardian's powers. Alternatively, the service provider can apply for a review of the order.