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Guardianship – When to appoint a Guardian?
- The power to appoint a guardian to take care of a mentally incapacitated person rests with the Guardianship Board, which is a quasi-judicial tribunal having the power to appoint guardians for adults over the age of 18 who are mentally incapable of making their own decisions about their personal affairs, financial matters, or medical or dental treatment. This includes older persons suffering from dementia or stroke who are incapable of taking care of themselves.
In dealing with an application for guardianship, the first question that the Guardianship Board asks is, of course, whether the person concerned is suffering from mental incapacity. If the answer is yes, the Guardianship Board then considers the following factors:
(Note: Prior to the making of a Guardianship Order, 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.)
- whether the mentally incapacitated person has a mental disorder or mental handicap of a nature or degree which warrants guardianship;
- whether the mental disorder or handicap limits the individual in making reasonable decisions in respect of all or a substantial proportion of the matters which relate to his/her personal circumstances;
- whether the individual’s particular needs may only be met or attended to by guardianship and that no other less restrictive or intrusive means are available in the circumstances; and
- that it is in the interest of the individual’s welfare or for protection of others that a guardian be appointed.
The Guardianship Board will not make a guardianship order unless all of the above criteria are met.
- An application for guardianship is fundamentally a legal proceeding (though it does not take place in a court room), which has the effect of appointing a guardian to look after the daily needs of a mentally incapacitated person, including an older person suffering from dementia. Therefore, if the person concerned is already receiving adequate assistance from his/her family members, friends or other service providers, an application for guardianship would not be necessary.
- Common examples which justify the application for a Guardianship Order are:
- there are conflicts within the family of the person concerned, or between his/her family and service providers, particularly when the conflicts are about his/her care, medical treatment and accommodation;
- the person concerned objects to his/her proposed care or treatment, e.g. placement in a residential facility;
- a doctor refuses to give non-urgent medical treatment to the person concerned unless there is a guardian consenting to such treatment; or
- the person concerned is suffering from, or at risk of, sexual, physical, emotional, or financial abuse, neglect, self-neglect or exploitation.