A person’s ability to make his or her own medical decisions carries major clinical, ethical and legal significance

In Hong Kong, within the healthcare context, there are three legislations or “instruments” dealing with this medical-legal issue

1) Advance Directive (AD)

When we are “smart”, we can create an AD to indicate the form of healthcare we would like NOT to have at a future time when we are no longer mentally competent to make medical decisions.

2) Guardianship Order (GO)

Granted by the Guardianship Board to appoint guardians for adults who are mentally incapable of making their own decisions about personal affairs, financial matters, medical or dental treatment.

3) Part IVC of Mental Health Ordinance

Part IVC of the MHO enables a doctor to provide necessary medical treatment to a MIP without consent.

4) Protection of Children

There are a number of Ordinances in Hong Kong intended to enhance the rights of children and protect them from abuse, including: the ”Protection of Children and Juveniles Ordinance” and the ”Guardianship of Minors Ordinance”.

Advance Directive (AD)

Nowadays, medical technology is advancing by strides. Even when life is coming to an end and the disease becomes irreversible, there are still “treatment” to prolong survival. However, some life sustaining treatments (LST) only prolong the dying process which may be of little meaning to the patient, or even aggravate patients’ suffering.

In Hong Kong, a mentally competent and properly informed adult aged 18 and above can make an Advance Directive (AD), explicitly expressing his wish to refuse specified LST when he is in an end-stage condition and no longer able to make medical decisions. If an AD is applicable and valid, doctors have the responsibility to follow the directive under common law.

No one including family members may revoke the AD made by the patient. The law of Hong Kong does not require an AD to be made in a specified format, but Hospital Authority (HA) of Hong Kong has designed an AD form for use by HA patients.

If the public wishes to sign an AD in private hospital or clinic, it is best to consult the doctor who is taking care of the patient’s long-term illness(es), for example, people with chronic renal failure can discuss with their nephrologists. If you are a healthy person, it is advised to talk to a geriatrician for further information.

Guardianship Order HK (GO)

The Guardianship Board, under Part IVB of Mental Health Ordinance, is a quasi-judicial tribunal that makes order appointing guardians for adult MIPs who are unable to make their own decisions about matters such as medical treatment, welfare issues, and financial management.

The Guardianship Board has specific and limited powers and it can:

1. Make Guardianship Orders to appoint a guardian

The guardian could be a family member or friend or the public guardian (Director of Social Welfare);

2. Grant the following powers to appointed guardian

(a) to require the person concerned to reside at a specific place;
(b) to require the person concerned to attend at a place and time for medical or dental treatment, special treatment, occupation, education or training;
(c) to consent to medical or dental treatment if the person concerned is incapable of understanding the general nature and effect of the treatment;
(d) to require access to the person concerned to be given to any doctor, approved social worker or other person specified in the Guardianship Order;
(e) to hold, receive or pay a specified monthly sum for the maintenance or other benefit of the person concerned (currently maximum at HK$17,400 per month).

Remarks

Before making an application for guardianship, we should consider whether there is already an appropriate informal arrangement because initiating a guardianship application is primarily a legal proceeding. If the person concerned is receiving adequate assistance from his/her family members, friends, relatives or service providers, there may be no need for guardianship.

Guardianship Order is not suitable for many cases. For example: withdraw MPF; on behalf of the subject to deal with insurance policies; to rent out, sell, assign or manage property; buy or sell stocks, securities or investments; applying for a grant of probate; seeking work injury or accident compensations; handling disputes on property or investment; recovering money misappropriated; handling problems on access and visit or making pension options of civil servants.

Further Information

Regarding (1) the needs and appropriateness of applying guardianship, and (2) the procedure of the application, you may contact the following organizations for further information and assistance:

 

You can also seek advice from private psychiatrists or geriatricians and arrange mental capacity assessment for the MIP when indicated.

Part IVC of Mental Health Ordinance

This is a legal requirement for doctors to seek informed consent from patients before giving any healthcare intervention. This reflects their ethical duty to respect a person’s autonomy. Incapacity for consent to treatment is defined under Part IVC of the Mental Health Ordinance (MHO) as the inability to understand the general nature and effect of the treatment.

Part IVC of the MHO gives a doctor to provide urgent or non-urgent medical treatment to a mentally incapacitated person (MIP) without consent, provided that the treatment is necessary and in the best interests of the patient. This ensures the MIP is not deprived of necessary treatment, solely because he/ she lacks the capacity to give consent. If the medical or dental treatment is necessary but non-urgent, and the adult MIP is having a legal guardianship with power to consent, then the doctor can obtain substitute consent from the Guardianship.

Children’s Protection & Welfare

The Protection of Children and Juveniles Ordinance (PCJO) is a key Ordinance in the protection of children and juveniles from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation (including sexual abuse) while in the care of parent(s), legal guardian(s) or any other person who has the care of the children.

The PCJO enables police offices and social workers to take action to protect a child or juvenile in need of care or protection. A care or protection order may be sought from the Juvenile Court.

 

The Guardianship of Minors Ordinance plays an important role in arrangements for the long
term welfare of children. The Ordinance enable parents and current guardians to appoint
other people to act as future guardians for their children who are still minors in the event of
the death of the parents or current guardians.

Finance and Legal

Why are there disputes about validity of Will? How to avoid? How to protect my parents with dementia or adult children with special need against financial exploitation? Is general power of attorney valid when someone becomes mentally incapacitated?

Special needs financial planning:

Let’s check out how the following ”tools” can help prepare ourselves and protect the legal and financial interest of our family members who are mentally-Incapacitated.

1) Will

A Will is arguably the most important legal document to make when we are smart! Not only can a will legally protect your spouse, children, and assets, it can also spell out exactly how you would like things handled after your death.

3) Part II of MHO

If a person is unable to manage and administer his finances due to mental incapacity, the family members can apply to High Court to appoint a Committee under Part II of the MHO.

2) Enduring Power of Attorney (EPA)

EPA allows the Donor to give directions regarding his property and financial affairs to an Attorney, and such document will NOT expire upon the Donor becoming mentally-incapacitated.

4) Special Needs Trust (SNT)

Individuals with special needs have legal right to own assets, however, it is difficult for them to manage the assets on their own. SNT provides reliable trustee to take care of financial matters for person with special needs after their parents pass away.

 Will Ordinance

A Will is a document which sets out how a person’s assets are to be distributed after his or her death. The person making the Will is called the “testator”.

Any person over the age of 18 and possesses mental capacity may make a Will in Hong Kong. The mental capacity to execute a Will is referred to as ”Testamentary Capacity”, meaning that the testator has the ability to:

E

Understand the nature of the act of making a Will and its effects

E

Not have disorder of mind that would poison his affection, pervert his sense of right or prevent the exercise of his natural faculties.

E

Understand the extent of property of which he is disposing

E

Comprehend and appreciate the claims to which he ought to give effect

If there is any reason to doubt the testator’s mental capacity, it is prudent to have a medical doctor assess and certify that the Testator has the relevant mental capacity when he gives instructions and executes the Will.

It is possible for a person to make a Will by himself, but it is generally advisable to seek help from a solicitor, especially where issues of mental capacity may arise. A well-drafted Will may also minimize potential disputes among family members and beneficiaries. By making a Will, the testator can:

  • Arrange how his assets will be shared amongst relatives other than according to the law of intestate
  • Leave assets to beneficiaries who are not related to him, e.g. friends and charities
  • Appoint executor(s) to manage and distribute the assets.

 

You may also have the following questions relating to making Will:

  • What are the differences between an estate with a Will and an estate without a Will?
  • Under what circumstances can a Will be revoked? What are the formalities of making a Will?
  • What other matters should be considered before making a Will?
  • I have lost all my love and affection for my wife. I plan to leave nothing to her without even mentioning her name in my Will. Can I do that?

Enduring Power of Attorney (EPA)

Enduring Power of Attorney (EPA) is governed by the Enduring Powers of Attorney Ordinance (Cap.501) in Hong Kong and allows the Donor to give authorities to one or more appointed Attorneys regarding the management of his property and financial affairs which will remain valid even if the Donor later becomes mentally incapacitated.

For an EPA to have legal effect, it must be made out in the “prescribed form” as required by the Ordinance. If you plan to make an EPA, you may first consult a lawyer to fill in the Form. You will need to sign it before a registered medical practitioner who will certify your mental capacity and, before a solicitor within 28 days thereafter. The appointed Attorney(s) must also sign on the EPA.

Part II of the MHO

If a person is unable to manage and administer his finances due to mental incapacity (referred to as “MIP”), the court has the power to appoint a Committee to manage his finances and affairs under Part II of the MHO. A Committee may be necessary where no EPA has been executed or where the Attorney under an EPA was given insufficient power to manage the MIP’s assets.

 

In appointing a Committee under Part II of the MHO, the court must be satisfied that a person is, by reason of mental incapacity, unable to manage and administer his property and affairs at the time of application. The applicant must include inter-alia, two recent medical certificates signed by registered medical practitioners, one of which must be from an approved doctor under section 2(2) of the MHO, certifying his mental incapacity. Application of Part II of MHO is a High Court procedure, you are strongly advised to consult a lawyer with relevant experience.

 

Special Needs Trust (SNT)

Special Needs Trust Office has been established in Dec 2018 to provide a trust service for parents/relatives who have family members with special needs.

This is an affordable trust, with the Director of Social Welfare as trustee, specifically for Hong Kong residents with special needs. The trust provides financial security for them after their parents/ carers have passed away.

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