Powers and duties of Committees

Powers and duties of Committees

The committee derives their powers from the order appointing them to be the committee. The Order is an exhaustive list of their powers. If they want to have more powers, they have to apply to the Court for authorisation. 

When in doubt, the committee should apply for specific authorization for the proposed course of action. 

The committee’s powers are set out in the Mental Health Ordinance section 10A and 10B. The committee is basically authorised to look after the financial and legal affairs of the mentally incapacitated person (MIP). Their powers include:

• Care and support: Doing whatever is needed to look after the MIP, their family, or anyone they would normally support if they were able.
• Managing property: Taking control of the MIP’s money, shares, and other assets, including transferring them or paying them into court.
• Selling or changing property: Selling, exchanging, mortgaging, or otherwise dealing with the MIP’s property, including business premises.
• Buying property: Purchasing property in the MIP’s name or for their benefit.
• Gifting or settling property – Giving property to others or setting it aside for certain purposes.
• Making a will:  Preparing a will for the MIP (statutory will).
• Running a business: Continuing the MIP’s profession, trade or business.
• Ending a partnership: Closing down a business partnership the MIP is part of.
• Honouring contracts: Carrying out agreements the MIP made before losing capacity.
• Legal action: Starting or defending court cases in the MIP’s name.
• Reimbursing expenses: Paying back people who have spent money to cover the MIP’s debts or support their family.
• Exercising powers: Using any legal powers the MIP holds, such as giving consent or acting as a trustee.

When the committee exercises these powers, they should have the MIP’s welfare and wishes as the paramount consideration. Once appointed, the committee must operate independently and must not be influenced by opinions from other relatives of the mentally incapacitated person. Further, the committee is subject to the supervision of the Court and, if necessary, may seek direction from the Court as to how the property and affairs are to be managed. 

Since the prime objective of the appointment of a committee is to administer the property and affairs of the mentally incapacitated person, the committee is required to file annual accounts of the estate of the person to the Court. 

It should be pointed out that while a committee does not have the power to authorize or consent to any medical or dental treatment for the mentally incapacitated person, this does not mean that the mentally incapacitated person would be helpless if urgent medical treatment is required. The Mental Health Ordinance provides that a registered doctor or dentist may treat a mentally incapacitated person without consent if the treatment is urgent, necessary, and in the person’s best interests. For non-urgent treatment, the committee can make an application to the Court anytime for consent to the carrying out of special treatment.

Unlike a guardianship order, which contains a fixed term for the guardianship (one year for the first appointment and not more than three years for subsequent renewal), an order appointing a committee does not impose a fixed term. This is consistent with the idea that the committee is to operate independently, though under the supervision of the Court. 

The powers of the committee will come to an end in the following circumstances: 

1. The mentally incapacitated has regained their capacity; 
2. The mentally incapacitated person has died; or 

3. Another committee has been appointed by the court as a replacement for the former committee.