FREQUENTLY ASKED QUESTIONS

Part V - Exercise of guardian's powers

1. How can a social worker find out whether the client has a legal guardian and/or to contact the appointed guardian under the restrictions of the Personal Data (Privacy) Ordinance (Cap. 486)?
   The data supplied by the applicant, or other parties are used by the Guardianship Board to discharge its statutory duties. It can also be disclosed to appropriate persons in the Guardianship Office or other relevant offices of the Social Welfare Department, Hospital Authority, and relevant NGOs’ involved in the assessment of, or provision of service/assistance to the mentally incapacitated person.
   
   The Guardianship Board is also obliged to protect the best interests of the mentally incapacitated person in obtaining medical treatment, by furnishing a guardian's contact details to the Hospital Authority, a registered medical practitioner or registered dentist.

Exercise of financial powers

2. What is the “monthly sum”?
   The“monthly sum”means a sum not exceeding the latest median monthly employment earnings, specified in the Quarterly Report on General Household Survey, published by the Census and Statistics Department. The Guardianship Board can make an order up to HK$21,000 (the 1st quarter of 2026 figures).
    
3. Can the Guardianship Board make orders to sell a mentally incapacitated person's property?
   No. An application would have to be made to the Court of First Instance (formerly the High Court) under Part II of the Mental Health Ordinance for an order relating to a mentally incapacitated person's property.
    
4. What are the duties of the guardian when he/she has been given the financial management power by the Guardianship Board?
   The guardian should open an account for the monthly income of the person concerned, and ensure that he/she keeps simple records of the expenditure, which he makes on his/her behalf. The money of the guardian and the money of the person concerned should be kept separate. The guardian has a duty to act as if he was a trustee. A trustee is a person who is legally in control of money belonging to someone else and has special duties. The guardian must be open, transparent and accountable for the monies. On a review of the guardianship order, the Guardianship Board may request to see the records to ensure that there is no financial abuse.
    
5. Can a guardian make a will on behalf of the mentally incapacitated person?
   No.

Duties of the guardian

6. What can the guardian do to implement the Guardianship Order for the welfare of the person concerned?
   A Guardianship Order gives all those involved with the person concerned an opportunity to discuss his welfare plan and management. The needs of the person concerned should be evaluated in consultation with the carer, his family and the professionals involved in his welfare. This includes assessing his service needs such as housing, medical treatment, professional services, financial support, education, employment and general care. Action should be taken to meet the needs that have been identified and to promote his interests. The guardian should actively promote and protect the interests of the welfare of the person concerned and ensure that all professionals caring for him do the same.

Post-order management

7. Who will "oversee" the appointed guardian?
   The Social Welfare Department has the statutory duty to oversee the private guardians under the Guardianship Regulations. Their staff will assist the guardians to understand and carry out their duties. The Guardianship Board also has a duty to review each Guardianship Order, at any time or before the order expires. This can be done on its own initiative, or at the request of the person concerned, the guardian, the Director of Social Welfare, any other person, including a relative, who has a genuine interest in his welfare.
    
8. How can the Guardianship Board be satisfied that the guardian is properly performing his duties?
   The Guardianship Board does not have a statutory role to ensure that the guardian is properly performing his/her duties on a day-to-day basis. That is a matter for the Social Welfare Department under the Guardianship Regulations. However, the power to review the order can be used by the Social Welfare Department, or any person with a genuine interest in the mentally incapacitated person, to bring the case back to the Guardianship Board for review or for directions if the guardian is not properly performing his/her duties. The Guardianship Board can also take the initiative to review the order itself if it has information that the guardian is not properly performing his/her duties.
    
9. If the guardian becomes unsuitable to perform his duties, what are the remedial measures and the legal implications?
   Initially the matter can be brought to the attention of Social Welfare Department as they have the statutory duty to monitor the guardian. They can initiate a prosecution under the Guardianship Regulations, if a guardian, without reasonable excuse fails to comply with the Guardianship Regulations, though this is likely to be rarely used. It is more likely that they will request the Guardianship Board to review the case, and to appoint an alternative guardian, either a relative or the Director of Social Welfare.

Conflicts between guardians and other parties

10. If a guardian is considered to have unsatisfactory performance, does he/she have a channel to explain?
    Yes. The guardian will be a party in a review and can defend the exercise of his powers to the Guardianship Board.
     
11. If the service provider and the guardian cannot reach consensus on what is good for the person concerned, who will make the decision?
    The guardian has the power to accept or reject the plan proposed by the service provider. If the service provider really feels that the decision made by the guardian is not promoting the best interests of the person concerned, the service provider can seek directions from the Guardianship Board as to the exercise of the guardian's powers. Alternatively, the service provider can apply for a review of the order.

DNACPR

12. What is the role of a guardian in relation to a do-not-attempt cardiopulmonary resuscitation (“DNACPR”) order to be made on behalf of a mentally incapacitated person?
    The Advance Decision on Life-sustaining Treatment Ordinance (“ADLSTO”) was enacted and gazetted on 29 November 2024. The Government has proposed to allow 18 months for all the relevant parties to get prepared before the ADLSTO formally take effect, and the Government has announced that the ADLSTO will be effective from 31 July 2026.  The Board expects that when the ADLSTO comes into force, it will also cover guardianship orders currently effective. In other words, the ADLSTO will affect all existing private guardians or private guardians reappointed upon review.  Therefore, we have consolidated the following information to alert applicants, proposed guardians, existing guardians and other related individuals of the need to pay attention to the developments on this front and to remind guardians to make sufficient consultation with the family members and significant others before performing their role under the ADLSTO when the legislation comes into force.  Please note that this document only preliminarily introduces a few of the provisions relating to guardians.  Readers should refer to the ADLSTO itself and other publicly available resources to ensure that they have a complete and accurate understanding of the goals and scope of the ADLSTO and its relevant laws. 

The ADLSTO has provided the legal framework for making, revocation and operation of the advance medical directives (“AMD”) and DNACPR orders.  For patients who are not able to sign an AMD, including minors and mentally incapable adults, doctors may propose to make a non-AMD based DNACPR order based on the consideration that CPR would not be in patient’s best interests after reaching consensus with patient’s responsible or eligible persons. 

Responsible persons are defined in section 25 of the ADLSTO to include (but not limited to) guardians for the purpose under Part IVB of the Mental Health Ordinance, but not the Director of Social Welfare and any Assistant Director of Social Welfare.  Section 47 of the ADLSTO provides that a guardian as a responsible person may co-sign Part 6 of the prescribed form of a DNACPR order to refuse treatment by CPR for an adult who is mentally incapable of deciding on a life-sustaining treatment.  As a responsible person, the guardian does not require separate authorization from the Board. Therefore, existing or proposed guardians should take note of their legislative role in non-AMD based DNACPR order when invited by the doctors to join the relevant discussion. 

The non-AMD based DNACPR must be made in writing in the prescribed form. The form must be signed by 2 doctors, and co-signed by the guardian or another responsible person to indicate his/her agreement with the doctors’ assessment. The DNACPR order should be kept by the guardian (whether or not he/she or another responsible person was the co-signer) and presented to the health care professionals as needed. Please note that there is no official electronic copy of a non-AMD-based DNACPR order. The DNACPR order has to be reviewed and renewed within 12 months after making. However, the review and renewal of the DNACPR only requires the signature of one doctor, and cosigning by a responsible person (including a guardian) is not required. 

Under this regime, whether or not the mentally incapacitated person is residing in a hospital setting or elsewhere, guardians should at least take note of the following matters: (i) ensure that their guardianship appointment is valid on the day they co-sign the order and will not shortly expire; (ii) when involved in guardianship proceedings, inform the case social worker and the Board as to whether a valid DNACPR order is in place for the Subject and whether they have co-signed it in the capacity of a guardian or in another capacity; (iii) refer to and be familiar with the information supplied by the relevant hospitals and doctors concerning the ADLSTO and perform their functions with the best interests of the patient in mind; and (iv) acknowledge that while coroner’s inquests may be exempt under certain situations for non-guardianship cases under the ADLSTO, the death of a mentally incapacitated person under guardianship remains reportable to the Coroner.

This is an important area as the best interests of a mentally incapacitated person is at stake.  In the light of the upcoming commencement of the ADLSTO, applicants, proposed guardians and existing guardians are expected to plan ahead of time and take into consideration the guardian’s role and the medical advice involved. 

If unsure, guardians, applicants and other stakeholders must timely seek independent advice on the legal interpretation and application of the ADLSTO.