Management of welfare, property and affairs

Management of welfare, property and affairs

The MHO Mental Health Ordinance (MHO) contains two separate regimes for the management of the affairs of mentally incapacitated persons. 

The dual regimes

There are currently two regimes for substituted decision-making on behalf of mentally incapacitated persons. Part II of the MHO establishes a regime that primarily deals with property and affairs, whereas Part IVB of the same Ordinance primarily deals with health and welfare, although there is some overlap (as demonstrated by the small amount of money that the guardian is able to use on behalf of the person under guardianship).

It is worthy of note that the current distinction between decisions regarding property and affairs and health and welfare is largely historical, and has been subjected to judicial critique due to several concerns, including:

1. The fact that the court is unable to consider the welfare of the person holistically if it is required to only focus on one particular aspect of it;
2. Going through both procedures in some cases causes additional burden on family members, both financially and emotionally; and
3. Two different processes means that there is a duplication of effort by the Guardianship Board and the court, as well as a lack of communication between agencies that are responsible for the two processes (see further SPLP v Guardianship Board [2019] 3 HKLRD 670).

Guardianship VS committee of estate 

Guardianship (Part IVB of the Mental Health Ordinance) is concerned with the day-to-day care of a mentally incapacitated person (MIP), such as the living arrangements (where, with who), visitation (who can visit and not visit), medical decisions (what treatment to receive, which doctor to consult). Guardianship is chosen when the main concern is the MIP’s health, safety, and personal welfare.

Committee (Part II of the Mental Health Ordinance) is concerned with the MIP’s finances - i.e. management of property and affairs. Committee is chosen when the main concern is the MIP’s financial management and legal obligations.

The distinction between the two is important. A guardianship order cannot substitute the functions of a committee, and likewise a committee cannot take the place of a guardianship order. (See: Re CKY [2025] HKCFI 393.) A Guardianship Order does not give authority to manage the MIP’s finances or property. A Committee cannot make decisions about the MIP’s medical care, living arrangements, or personal welfare.

If the issue is whether the MIP should undergo surgery or move into a care facility, guardianship is the appropriate route. If the issue is selling the MIP’s apartment to fund that care, then the committee is the right track.