HONG KONG SAR, CHINA Law and Practice Contributed by: Jeffrey Lee, Jessica Leung and Hilary Leung, Charles Russell Speechlys
making investment and allocate investment gains or losses to individual trust accounts on a pro rata basis. 8.2 Appointment of a Guardian Guardian for Children Parents can appoint a guardian for their children in case both of them pass away while their children are under the age of 18 years. Such an appointment may be made in writing by the parents and attested by two witnesses in accordance with the provisions of the Guardianship of Minors Ordinance without the need for a formal registration. Upon assuming guardianship, a person appointed as the guardian of a minor has parental rights and author - ity with respect to the minor. A person appointed by a parent (or guardian) as the guardian will automatically assume 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 they die, or if the appoint - ing parent (or appointing guardian) lived with the minor immediately before dying and the minor does not have any surviving parent or surviving guardian when the appointing parent (or appointing guardian) dies. In other cases, after the appointing parent (or appoint - ing guardian) dies, the person appointed as the guard - ian may apply to the court to assume guardianship over the minor, and the court may order the person to: • act jointly with the surviving parent or surviving guardian; • act as the guardian of the minor after the minor no longer has any parent or guardian; • act as the guardian of the minor at a time, or after the occurrence of an event, specified by the court; • be removed as a guardian; or • act as the guardian of the minor to the exclusion of the surviving parent or surviving guardian. The court may, in its discretion, remove any guardian and appoint another person to replace that guardian if they are satisfied that it is in the best interest of the minor.
In making any order in relation to the guardianship of a minor, the court will regard the best interests of the minor as the first and paramount consideration, and will give due consideration to the views of the minor if it is practicable to do so, having regard to the age and understanding of the minor and the circumstances of the case. Guardian of a Mentally Incapacitated Person The guardian of a mentally incapacitated person (MIP) is appointed by the Guardianship Board and has stat - utory power to make decisions on accommodation and care arrangements for the MIP. The Guardianship Board is a quasi-judicial tribunal consisting of a chairman with legal experience, at least three members who are barristers or solicitors, at least three members who have had experience in assessing or treating MIPs (who may include regis - tered medical practitioners or social workers) and at least three members who have had personal experi - ences with MIPs. A family member, a friend or the public guardian may be appointed as the guardian and may have the fol - lowing powers, subject to the Guardianship Order: • to specify the MIP’s residence; • to bring the MIP to a specific place as necessary; • to bring the MIP to attend medical and other treat - ments or training; • to consent to medical or dental treatment on behalf of the MIP; • to arrange access to the MIP by any doctor, approved social worker or other persons specified in the Guardianship Order; and • to hold, receive or pay a specified monthly sum for the maintenance or benefit of the MIP. An assigned social worker will visit the MIP each month and the guardian will need to provide reports every month, including monthly accounts and all rel - evant information such as accommodation and medi - cal treatment. Committee of the Estate of an MIP The Committee of the estate of an MIP is appointed by the court and has statutory power to manage and
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