Criteria for making guardianship orders

Criteria for making guardianship orders 

Before making any guardianship order, after conducting a hearing into any guardianship application, the Guardianship Board should consider (section 59O(1) of the Mental Health Ordinance (MHO)):

1. The representation (if any) of any person present at the hearing to whom a copy of the guardianship application has been sent; 
2. The social enquiry report from the Director of Social Welfare, containing the views and wishes of the person concerned, insofar as they may be ascertained, and include an assessment of the his/her family background, and social and financial situation; 
3. Whether the mentally incapacitated person (MIP) indeed needs a guardian. 

Guardianship orders must be subject to terms and conditions as the Guardianship Board sees fit. The conditions can include terms prescribing the exercise, extent and duration of any particular powers, and the duties of the guardian appointed. (section 59O(2) of the MHO).

There are 4 criteria that must be satisfied before a guardianship order is made by the Guardianship Board in respect of an MIP (section 59O(3) of MHO): 

1. Mental disability: that the MIP (who is mentally disordered), is suffering from mental disorder of a nature or degree which warrants his reception into guardianship; OR the MIP who is mentally handicapped suffers from a mental handicap of a nature and degree which warrants his reception into guardianship; 
2. Limitations brought by the mental disability/handicap: The mental disorder/handicap limits the MIPs ability to make reasonable decisions about most or all aspects of their personal life, such as housing and care arrangements; 
3. Needs and last resort: The MIP’s needs can only be properly met through guardianship, and there is no less restrictive or intrusive way to provide the necessary support; and 

4. Best interest: Receiving the MIP into guardianship must be in the interest of the welfare of the MIP or for the protection of other persons.