Applications

Applications

Appointment of a Committee for the Estate of a mentally incapacitated person is governed by Part II of the Mental Health Ordinance (MHO). Such proceedings are non-adversarial but quasi-inquisitorial. They are protective in nature, which are done for the benefit and protection of mentally incapacitated persons. 

Who can apply to appoint committees? 

Relatives (section 2 of the Mental Health Ordinance) of the alleged mentally incapacitated person can apply. They include: 

1. spouse or reputed spouse;
2. child or child’s spouse;
3. parent or parent-in-law;
4. sibling or sibling’s spouse;
5. grandparent or grandparent-in-law;
6. grandchild or grandchild’s spouse;
7. uncle or aunt;
8. nephew or niece or spouse of nephew or niece;
9. cousin or cousin’s spouse;
10. any person with whom the mentally incapacitated person resides or has resided. 

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.

    

When to appoint committees? 

A “mentally incapacitated person” for the purpose of a Part II inquiry under the Mental Health Ordinance is “a person who is incapable, by reason of mental incapacity, of managing and administering his property and affairs”. A committee can be appointed when the Court is satisfied that the subject person suffers from mental incapacity, and because of that incapacity, s/he cannot manage or administer his property and affairs. 

The test of “property and affairs” applies only to business matters, legal transactions and other dealings of a similar kind, but it does not extend to physical care or treatment. 

Who can be committees? 

Anyone can be appointed as a committee of the mentally incapacitated person as long as they consent to being appointed. Normally, the applicant in court proceedings under the Mental Health Ordinance will also consent to being appointed as the committee. The court may also prefer relatives who have a good relationship with the mentally incapacitated person (MIP) and knows about his/her financial affairs to be the committee. 

In circumstances where it is not appropriate for the relative to be appointed as the committee (e.g. potential conflict of interest, acrimonious relationship amongst the relatives that may hinder the effective management of the MIP’s affairs, or the asset portfolio is too complicated for a layman without professional knowledge), the court may appoint a professional third party as the committee instead. Choices of professional third-parties include accountants, auditors, and solicitors. The committee may consist of a group of relatives and professionals, or it may comprise a single individual, usually a close relative who is willing to assume the role.

In cases where no relative can be located or no relative of the person concerned is willing to take on the role of the committee, the Court will appoint the Official Solicitor as the committee.