What could be done if my husband or wife is mentally incapable of making welfare decisions for themself?

Navigating the complex landscape of welfare and financial decisions for a loved one facing mental health challenges can be overwhelming. Whether it's determining where your husband or wife should live, managing their medical care, or handling their financial affairs, understanding the legal avenues available is essential.

This guide provides a clear overview of the processes involved in applying for guardianship and property management orders under Hong Kong's Mental Health Ordinance. Learn about the key steps, the roles of the Guardianship Board and the Court, and practical advice to help you make informed decisions during this challenging time.

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Welfare Decisions (e.g., residence, medical treatment, daily care)

• Guardianship Order:
  You may apply to the Guardianship Board under Part IVB of the Mental Health Ordinance (Cap. 136) for a guardianship order. If granted, a guardian (which could be you or another suitable person) will be empowered to make welfare decisions for your spouse, such as where they live, their care arrangements, and certain medical decisions.

Property and Financial Affairs

• Committee Appointment:
  It would be ideal if your spouse had executed an Enduring Power of Attorney (“EPA”) before becoming mentally incapacitated, as the appointed attorney could have handled the affairs. If not, there is another option. For managing your spouse’s property and financial affairs, an application can be made to the Court under Part II of the Mental Health Ordinance (Cap. 136) for the appointment of a "committee" of the estate. The committee (which can be a family member or the Official Solicitor) will be authorized to manage their assets, handle bank accounts, pay bills, and make financial decisions on their behalf.

Key Points

• Medical evidence of your spouse’s mental incapacity will be required for both applications.
• If there is an urgent need for interim care or access arrangements, the Court has inherent jurisdiction to make protective orders pending formal appointments.

Recommended Next Steps

1. Obtain Medical Evidence: Secure two medical certificates confirming your spouse’s incapacity, with at least one from a Hospital Authority-approved doctor.
2. Consider Legal Advice: The processes can be complex, especially if there is any family disagreement or substantial assets involved.
3. Prepare Applications:
   
   • For welfare: Apply to the Guardianship Board for a guardianship order.
   • For finances: Apply to the Court for the appointment of a committee of the estate.

Need help navigating this issue? Check out Ask.Legal — our AI-powered legal assistant is ready to help 24/7.

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