Guardianship

Aims:

Having guardians make decisions about care plans, place of residence, welfare issues, financial matters, and/or medical treatments on behalf of the person.

Validity:

Family members, social workers, or physicians can file an application after the person is certified to be mentally incapable.

Constitutionality:

Processed by the Guardianship Board and has been used widely.

Formality:

The applicant (caregiver) must submit two medical reports with the application form to the Guardianship Board to process.

• Guardianship is the legal power to make decisions relating to care plans, place of residence, welfare issues, financial matters, and/or medical treatments on behalf of the MIP, that is, a person who is incapable, by reason of mental incapacity, of managing and administering his or her property and affairs.
• The guardian appointed by the Guardianship Board can make important decisions on the place of residence and medical treatments on behalf of the MIP, and can manage a monthly sum of up to $17,500 for the person.
• The initial guardianship order is usually valid for up to one year. Renewed guardianship orders are usually valid for up to three years.

1. There is no need to apply for guardianship if family members or relatives are handling the MIP's care issues, accommodation, welfare, finance, and medical issues for him or her appropriately.
2. Guardianship should be applied for an MIP who is in the following situations so that the Director of Social Welfare as a public guardian can protect the person's interests, welfare, and health. For example:
   • The person, family members, or other people have conflicting opinions on the person's care issues, accommodation, welfare, finance, or medical issues, such that the interests, welfare, or health of the person are not being protected sufficiently, including failure to get medical treatment.
   • The person is suffering from or is at risk of sexual, physical, emotional, or financial abuse, neglect, self-neglect or exploitation, or a danger to his or her health, such that the interests, welfare, or health of the person are not being protected sufficiently, including failure to get medical treatment.
3. Guardianship should be applied for an MIP who has no family members or relatives and is incapable of making appropriate decisions on his or her own care issues, accommodation, welfare, finance, and medical issues so that the Director of Social Welfare as a public guardian can protect the person's interests, welfare, and health.

1. Family members or relatives of the MIP, social workers such as those who are working in non-government organizations for the person, registered physicians, and public servants of the Social Welfare Department like social workers can submit applications.
2. The applicant has to submit two medical reports with the application form.
   • One of the medical reports has to be filled out by a physician approved by the Hospital Authority.
   • The other medical report can be filled out by a registered medical physician.
     • Approved physicians include psychiatrists and psychogeriatricians.
     • Registered medical physicians include general practitioners, geriatricians, and physicians in Hospital Authority clinics.
   • The applicant is responsible for the fees of the medical reports.
   • The application process for guardianship is free of charge.
3. The applicant must complete the application form within 14 days after he or she last saw the MIP.
4. The applicant must submit the application form and the two medical reports to the Guardianship Board within 14 days of the MIP being examined by the second physician.
5. The Guardianship Board will request a social enquiry report from the Social Welfare Department after a valid application is received. It usually takes four weeks to prepare the report. The preparation time may be shortened in case of emergency. The necessity of the report can be waived if needed.
6. The Guardianship Board will hold a hearing to decide on the application after that. The MIP, the applicant, the Director of Social Welfare, the proposed guardian, selected family members, and witnesses such as the physicians and social worker involved will receive notification of the hearing at least 14 days in advance. The notification period will be shortened or waived in case of emergency.
7. At least three members of the Guardianship Board, including one person with personal experience of the MIP, one lawyer, and either a physician, social worker, or clinical psychologist will decide in the hearing on the following:
   • Whether the MIP needs a guardian.
   • Who the guardian should be.
   • What powers the guardian will have.
   • The length and other terms and conditions of the order.
8. The written guardianship order and the reasons for the order will be mailed to the related parties within seven working days of the hearing so that the appointed guardian can exercise the guardianship.