Elder abuse

Assistance to elders who are mentally incapacitated persons (MIP)

If the elder is a “mentally incapacitated person” (“MIP”) within the meaning of Section 2(1) of the Mental Health Ordinance (“MHO”), Cap.136, Laws of Hong Kong, a committee of the estate can be appointed under Part II of the Ordinance to protect the property and financial affairs of the MIP and a guardian can be appointed under Part IVB of the Ordinance to handle MIP’s bank accounts.

Guardianship Order

A guardianship Order is made by the Guardianship Board.  The Guardianship Board is a legal quasi-judicial tribunal which conducts hearings in order to make guardianship orders for people aged 18 or above who are incapable of making sound decisions. The Board can appoint a private guardian (family member or friend) or a public guardian (the Director of Social Welfare).

A guardianship application under Part IVB of the MHO may be made on the grounds that:

  1. an MIP is suffering from a mental disorder or mental handicap of a nature or degree which warrants his or her reception into guardianship under Part IVB; and
  2. if it is necessary, in the interests of the welfare of the MIP or for the protection of other persons, that the MIP should be received into guardianship.

The application has to be accompanied by and founded on the written reports of two registered medical practitioners in accordance with section 59M(3) of the MHO. The medical report shall include:

  1. a statement that in the medical or other opinion of the practitioner, the grounds set out in section 59M(2) of the MHO are satisfied;
  2. the reasons for that opinion so far as it relates to the grounds set out in section 59M(2)(a) and section 59M(2)(b).

A Guardianship Order can last up to 12 months.

Emergency Guardianship Order

The process of application for a Guardianship Order can be time-consuming.

The Board can make an Emergency Guardianship Order under section 59Q of the MHO where it has reasons to believe that:

  1. a person concerned is in danger, or is being, or likely to be, maltreated or exploited;
  2. the person concerned is incapable of making reasonable decisions in relation to his personal circumstances; and
  3. it is necessary to make immediate provision to protect the person.

The applicants in such circumstances are likely to be a social worker, doctor, or a family member. However, an application for a normal Guardianship Order (under section 59M of the MHO) must be made first or simultaneously when applying for an Emergency Guardianship Order.

An Emergency Guardianship Order lasts for a maximum of 3 months.

For more details about Guardianship issues, please click here.