C. The Guardianship of Minors Ordinance
The Guardianship of Minors Ordinance, Cap. 13 plays an important role in arrangements for the long term welfare of children. Sections 6(1) and 6(2) of the Ordinance enable parents and current guardians to appoint other people to act as future guardians for their children who are still minors in the event of the death of the parents or current guardians. In April 2012, the Labour and Welfare Bureau of the HKSAR Government prepared a standard appointment form with explanatory notes to assist with appointing guardians. That form should be used if you need to appoint a guardian to look after your children in the event of your death. It may be accessed here).
A separate form is needed for each appointment of a guardian. The appointment form must contain the names, addresses, and identity card numbers of the persons making the appointment, and the names and identity card numbers of the person(s) being appointed as guardian or guardians. The appointment form must confirm that in making the appointment the views of the minor have been taken into account so far as this is practicable with regard to the minor’s age and ability tounderstand. A guardian, or guardians, can be appointed to act together with a surviving parent. An appointment may be made by two or more persons acting jointly.
Appointment forms must be dated and signed either by the person(s) making the appointment or by another person at the direction, and in the presence, of the person(s) making the appointment; and attested by two witnesses. An appointment has no effect unless the appointed person(s) accept(s) the office either expressly or impliedly by conduct. Ideally the person appointed should sign the appointment form to confirm his/her acceptance of the appointment.
A person appointed as the guardian of a minor has, on assuming guardianship, parental rights and authority with respect to the minor. A guardian appointment terminates when the child reaches 18 or dies. It similarly ends if the guardian dies or is removed from guardianship by the court. A guardian appointed by a parent or guardian may be removed by the court if the court thinks this is in the best interests of the minor. When considering appointing a guardian, both the relationship between the child and the intended guardian(s), and the child’s views on the intended appointment, should be considered so far as this is practicable depending on the child’s age and ability to understand.
1. When and how guardianship takes effect
Under section 7 of the Ordinance a person appointed by a parent or guardian as the guardian of a minor automatically assumes guardianship over the minor upon the death of the appointing parent or appointing guardian if:-
- the appointing parent or appointing guardian has a custody order over the minor immediately before he or she dies; or
- the appointing parent or appointing guardian lived with the minor immediately before dying AND
- the minor does not have any surviving parent or other surviving guardian when the appointing parent or appointing guardian dies.
In all other cases, a person appointed as aguardian may, after the appointing parent or appointing guardian dies, apply to the court to assume guardianship over the minor. In those cases the court may order the person to act jointly with the surviving parent or surviving guardian; to act as the guardian after the minor no longer has any parent or guardian; to act as the guardian of the minor at a time of, or after the occurrence of, an event specified by the court; to be removed as a guardian; or to act as the guardian of the minor to the exclusion of the surviving parent or surviving guardian.
2. Disputes between joint guardians
Joint guardians should be appointed with sufficient care that they can work together in the best interests of the children. When considering whom to appoint as a guardian, thought must be given to the relationship the child has with the intended appointee, the child’s views about the intended appointment, and how that relationship is likely to develop over time. Under section 9 of the Ordinance, where two or more persons act as joint guardians of a minor and they are unable to agree on any question affecting the welfare of the minor, any of them may apply to the court for its direction, and the court may make such order regarding the disagreement as it may think proper. This could include the removal of a guardian, as the welfare of the child is the first and paramount consideration. Under section 21 of the Ordinance, where one of the disagreeing joint guardians is the surviving parent, the court can make such order regarding the custody of the minor; and the right of his or her surviving parent to have access to the minor, as the court thinks fit having regard to the best interests of the minor. Orders can be made requiring the surviving parent to contribute to the financial support of the child depending upon the means of the surviving parent.
Matters relating to Guardianship and attendant disputes are heard in the District Court, though they may be removed to the Court of First Instance on the application of either party under section 24 of the Ordinance if the Court of First Instance thinks this is appropriate in the particular case involved.
3. Revocation of guardian appointment
An appointment of a guardian under the Ordinance revokes any earlier appointment (including one made in a will) made by the same person in respect of the same minor, unless the purpose of the later appointment is to appoint an additional guardian. An appointment (including one made in a will) is revoked if the person who made the appointment revokes it by a written and dated document that is signed either by the person who made the appointment or by another person, at the direction, and in the presence, of the person who made the appointment and is attested by two witnesses. An appointment under the Ordinance (other than one made in a will) is revoked if, with the intention of revoking the appointment, the person who made it destroys the document by which it was made or instructs any other person to destroy the document in the person’s presence. If an appointment under the Ordinance is made by two or more persons acting jointly the appointment may be revoked by any of them. The person who revokes the appointment must notify all other persons who jointly made the appointment of the revocation.