Taking care of a mentally incapacitated person: Guardianship or Committee

Committee – The application

  1. The application for the appointment of a committee starts with an application for an inquiry into whether the person concerned is incapable, by reason of mental incapacity, of managing and administering his/her property and affairs. The application for inquiry can be made by any relative of the person concerned. But if no application is made by any relative, the following persons may make the application:

    1. the Director of Social Welfare;
    2. the Official Solicitor; or 
    3. the guardian of the person concerned.

  2. The application must be accompanied by:

    1. A certificate or an affidavit signed by the applicant, together with documentary evidence, setting out the particulars of the relatives, or next-of-kin and property of the person concerned; and
    2. two medical certificates certifying that the person concerned is incapable, by reason of mental incapacity, of managing and administering his/her property and affairs; at least one of the certificates has to be provided by a medical practitioner approved by the Hospital Authority as having special experience in the diagnosis or treatment of mental disorders, or having special experience in the assessment or determination of mental handicaps, as the case may be. (A list of the approved doctors can be found on the website of the Guardianship Board.)

  3. In conducting the inquiry, the Court may require the person concerned to attend the Court or another specified place for the purpose of being personally examined by the Court.

  4. Upon confirmation that the person concerned is incapable, by reason of mental incapacity, of managing and administering his/her property and affairs, the Court may make further orders for the maintenance or other benefit of that person and his/her family and for administering his/her property and affairs. That would be the appointment of a committee to take care of these matters.

  5. It should be noted that the application for the appointment of a committee under the Mental Health Ordinance (Chapter 136 of the Laws of Hong Kong) is relatively complicated. The application may encounter further complications if the property of the person concerned is of substantive value and if the proposed appointment is subject to challenge from other parties (e.g. other relatives). It is, therefore, advisable to engage solicitors to assist in the application for the appointment of a committee.