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Committee for a mentally incapacitated person
When to appoint a Committee?
- As discussed above, a committee appointed under the Mental Health Ordinance (Chapter 136 of the Laws of Hong Kong) is appointed for the primary purpose of “managing and administering…[the] property and affairs” of a mentally incapacitated person. The prime concern is “property and affairs”.
In contrast with a guardian, who is allowed to hold, receive or pay a specified sum up to a maximum of HK$12,000 per month, the committee has the wider power to control and manage the property of a mentally incapacitated person, including the transfer, vesting, sale, charging or acquisition of such property, as ordered by the Court.
- A committee, however, does not have the power to authorize or consent to any medical or dental treatment, or make any decision regarding the residence of the mentally incapacitated person. But the management of the property and affairs of a mentally incapacitated person cannot be wholly segregated from the care and treatment of the person. A committee certainly has the power to make payments to elderly homes and to settle hospital bills. Thus, a committee can indirectly decide which elderly home or which hospital a mentally incapacitated person is admitted to.
- Overall, it would be fair to say that a committee is more appropriate for mentally incapacitated persons who are relatively well-off.
Who can be the Committee?
- There is no fixed rule as to who can be members of a committee appointed under the Mental Health Ordinance (Chapter 136 of the Laws of Hong Kong). However, since it is quite obvious that a committee’s work involves handling property (in many cases property of considerable value), and since mentally incapacitated persons cannot look after themselves or their property, the Court exercises due care in appointing the committee.
- The Court usually appoints relatives (plus other necessary members) of the mentally incapacitated person to be on the committee. That is to say, the committee can be a group of persons consisting of relatives and professionals (e.g. an accountant); an accountant would commonly be included in the committee when the estate of the mental incapacitated person is substantive. However, the committee may also comprise only one person, usually a close relative willing to take up the role of the committee.
- 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.
(Note: Prior to the appointment of a committee by the Court, it is not yet confirmed that the subject person is mentally incapacitated. The term “person concerned”, instead of “mentally incapacitated person”, would therefore be more appropriate in such circumstances.)