Due to the vicissitudes of life, it is foreseeable that an individual may lose mental capacity to deal with his own affairs by reason of for example dementia or being involved in a traffic accident. In these circumstances, it is of paramount importance that this individual is properly taken care of. In appropriate circumstances, an application may be made under Part II of the Mental Health Ordinance (Cap. 136) (“MHO”) to appoint an individual or a committee to manage the mentally incapacitated person (“MIP”)’s property and affairs.
An application under Part II of the MHO usually involves 2 stages, being the directions stage and the inquiry stage respectively. At the directions stage, it is incumbent on the applicant to place sufficient materials before the court to enable the court to give directions for an inquiry to be held.
At the inquiry stage, the court shall decide (if applicable) the following issues:-
- whether the MIP is incapable by reason of mental incapacity of managing and administering his property and affairs;
- whether it is appropriate to appoint a committee of the estate of the MIP;
- whether to direct a sale of property belonging to the MIP; and
- whether to make such order regarding the costs of the inquiry including remuneration to physicians and surgeons as deemed reasonable.
Directions Stage
Who can apply?
Applications for an inquiry may be made by any of the parties referred to in section 7(3) of the MHO. A "relative" of the alleged MIP (see definition under section.2 of MHO) may make the application which will include the following persons:-
- spouse or reputed spouse;
- child or child’s spouse;
- parent or parent-in-law;
- sibling or sibling’s spouse;
- grandparent or grandparent-in-law;
- grandchild or grandchild’s spouse;
- uncle or aunt;
- nephew or niece or spouse of nephew or niece;
- cousin or cousin’s spouse; or
- any person with whom the MIP resides or has resided.
If there is no application by any relative, the Director of Social Welfare or the Official Solicitor or the guardian may apply.
How to apply?
An application can be made by filing an Ex-parte Originating Summons together with supporting documents and a draft Order for directions. Notice of such an application should be given to the Official Solicitor and also served on the MIP.
What documents are required?
- Two medical certificates to prove that the MIP is indeed mentally incapacitated. At least one of the medical certificates must be given by a medical practitioner approved for this purpose by the Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap. 113) as having the relevant special experience (see section 2(2) of the MHO).
- Evidence of the relatives or next-of-kin and the property (in the form of a Certificate of Family or Property).
- Such other documents or evidence as may be required by the Court.
What further documents or information are required if an application is made for the appointment of a committee of estate?
Where the appointment of a committee of the estate of an alleged MIP is sought, the court must be provided with all relevant and necessary information regarding the members of the proposed committee. Information as to the background, training, qualification and experience of members of the committee must be provided, as well as the manner in which the applicant envisages how the proposed committee will manage and administer the property and affairs of the alleged MIP.
The Inquiry Stage
At least 10 clear days before the hearing, a draft order containing all the reliefs sought must be submitted to the Court together with a skeleton bill of costs (if the costs are intended to be paid out of the estate of the MIP).
The Applicant should also send a set of papers to the Official Solicitor for comments well in advance of the inquiry.
The court will proceed to decide the issues as highlighted in the earlier part of this article at the inquiry stage.
Section 23 of the MHO for transfer of property of the MIP residing out of Hong Kong
The MHO envisages the situation whereby a MIP resides outside of Hong Kong but holds assets within Hong Kong. In these circumstances, if a committee, curator or manager has been appointed in a foreign country, it is possible to obtain an order from the Hong Kong court to direct that assets of the MIP in Hong Kong be transferred to such person.
In order to invoke the power under section 23 of the MHO, the applicant will need to demonstrate to the court that:-
- MIP is residing out of the Hong Kong;
- the MIP has been declared mentally incapacitated; and
- the personal estate of the MIP has been vested in a committee, curator or manager accordance to the laws of the place where he is residing.
An application under Part II the MHO can be a time consuming and costly exercise. An individual can consider preparing an enduring power of attorney so that in the unfortunate circumstance that he becomes mentally incapacitated, the donee of the power can proceed to manage and administer his affairs without resorting to an application under Part II of the MHO. For details regarding preparation of an enduring power of attorney, please see link here.
