FREQUENTLY ASKED QUESTIONS

Part II - Guardianship Procedures

Duties of applicant

1. What are the duties of the applicant?
   The applicant has the following duties: -
   • He/She should inform the person concerned and his family that an application has been made.
   • if the applicant is a family member, then he/she should inform the immediate family members. He/She should let them know what is happening in the guardianship process.
   • He/She should inform the Guardianship Board of the names and contact details of relevant family members so that it can decide whether they should be formally told of the guardianship application.
   • He/She should cooperate with the social worker from the Social Welfare Department and furnish relevant information such as names and addresses of family members, the medical and social history of the mentally incapacitated adult and his/her income, assets and expenditure to the social worker who is preparing the social enquiry report.
   • He/She should keep the Guardianship Board Secretariat informed of any changes in the mentally incapacitated person's circumstances before and at the hearing.
   • He/She should attend the hearing and ensure that the person concerned is present, or that someone else arranges his/her presence.

Medical reports

2. Are the medical practitioners chosen by the Guardianship Board?
   No. The Guardianship Board does not make recommendations on particular doctors nor do they choose the approved doctor. It can make the list of approved doctors available to the applicant or social worker of the person concerned.
    
3. If the person concerned is unwilling to attend a medical examination, how can a caseworker proceed with the application for guardianship?
   The Guardianship Board cannot process an application without two medical reports. It has no legal power to order an assessment or a report until the application is filed. Part IVC of the Mental Health Ordinance defines“medical treatment”as including “any examination” (see our leaflet “Consent to Medical and Dental Treatment”). It may be that the doctors are prepared to do a medical examination if it is regarded as necessary and in the best interests of the person concerned. The doctors may also be able to visit the residence of the person concerned and assess him despite his lack of cooperation.
    
4. If the person concerned is not known to any psychiatric clinic of any hospital, how can the caseworker arrange the medical examination?
   If the person is already a patient of the Hospital Authority, then the treating doctor can arrange a referral to an approved doctor. If the person concerned is generally NOT a patient of the Hospital Authority, then private medical practitioners need to be contacted. Alternatively the caseworker can refer the person concerned to the Family Services Centre of the Social Welfare Department for referral to the Hospital Authority for the medical examination.

Preparing for the hearings

5. Is legal aid available?
   Legal aid is not granted by the Legal Aid Department for hearings before the Guardianship Board.
    
6. Do I need a lawyer to represent me at the hearing?
   The Guardianship Board conducts hearings less formally than a court so it is generally not necessary to be represented by a solicitor or barrister. However, the Guardianship Board may decide that a party such as the person concerned ought to be separately represented by a solicitor or barrister. Then arrangements will be made to ensure that the party is represented. The Guardianship Board may also allow parties to be accompanied by other persons to the hearing. For more information on preparing for the hearing, ask for the leaflet, “The Hearing Process for Guardianship”.