### Mental Health Ordinance 《精神健康條例》

59S. Guardians
(1) A person (other than the Director of Social Welfare) shall not be appointed by the Guardianship Board as a guardian of a mentally incapacitated person received into guardianship under this Part unless the Board is satisfied that—
(a) the proposed guardian has attained the age of 18 years;
(b) the proposed guardian is willing and able to act as a guardian;
(c) the proposed guardian is capable of taking care of the mentally incapacitated person;
(d) the personality of the proposed guardian is generally compatible with the mentally incapacitated person;
(e) there is no undue conflict of interest, especially of a financial nature, between the proposed guardian and the mentally incapacitated person;
(f) the interests of the mentally incapacitated person will be promoted by the proposed guardian, including overriding the views and wishes of that person where the proposed guardian (once appointed) considers such action is in the interests of that person;
(g) despite paragraph (f), the views and wishes of the mentally incapacitated person are, in so far as they may be ascertained, respected;
(h) the proposed guardian has consented in writing to the appointment as a guardian.
(2) Where it appears to the Guardianship Board that there is no appropriate person available to be appointed the guardian of a mentally incapacitated person the subject of a guardianship application, the Guardianship Board shall make a guardianship order appointing the Director of Social Welfare as the guardian of the mentally incapacitated person.
(3) In the performance of any functions or the exercise of any powers under this Ordinance the guardian shall ensure—
(a) that the interests of the mentally incapacitated person the subject of the guardianship order are promoted, including overriding the views and wishes of that person where the guardian considers that such action is in the interests of that person;
(b) despite paragraph (a), that the views and wishes of the mentally incapacitated person are, in so far as they may be ascertained, respected,

and shall comply with directions (if any) given by the Guardianship Board in respect of that guardian and any regulation made under section 72(1)(g) or (h).

### Mental Health Ordinance 《精神健康條例》

59T. Transfer of guardianship in case of death, incapacity, etc. of guardian
(1) If any person (other than the Director of Social Welfare) who is the guardian of a mentally incapacitated person received into guardianship under this Part—
(a) dies; or
(b) gives notice in writing to the Guardianship Board that he desires to relinquish the functions of guardian,

the guardianship of the mentally incapacitated person shall, subject to a review by the Guardianship Board under section 59U, upon that death or the receipt of that notice, as the case may be, vest in the Director of Social Welfare.
(2) If any such guardian, not having given notice under subsection (1)(b), is incapacitated by illness or any other cause from performing the functions of guardian of the mentally incapacitated person, those functions shall, during the guardian’s incapacity and subject to a review by the Guardianship Board under section 59U, be performed on his behalf by the Director of Social Welfare or by any other person approved for that purpose by the Guardianship Board.

### Mental Health Ordinance 《精神健康條例》

59V. Absence of mentally incapacitated person without permission
Where a mentally incapacitated person who is for the time being subject to a guardianship order under this Part absents himself without the permission or agreement of the guardian from the place where he is required by the guardian to reside, he may be taken into custody and returned to that place by the guardian or by the Director of Social Welfare, and such reasonable force may be used as is necessary for the purpose.

59W. Appeal to Court
(1) Any party to proceedings before the Guardianship Board may appeal to the Court from any decision of the Board in that proceeding—
(a) on a question of law; or
(b) with the leave of the Court, on any other question.
(2) An appeal by any person under this section shall be instituted—
(a) within the period of 28 days after the day on which any document setting out the terms of the decision of the Board is sent to the person; or
(b) within such further period as the Court may allow.
(3) On the hearing of an appeal under this section, the Court shall determine the appeal and may make such order as it thinks fit including the following, namely—
(a) an order affirming the decision of the Guardianship Board;
(b) an order setting aside the decision of the Guardianship Board;
(c) an order remitting the case to be heard and decided again by the Guardianship Board (either with or without the hearing of further evidence) in accordance with the directions of the Court.
(4) Pending the determination of an appeal by the Court, and subject to any order made by the Court to the contrary, the appeal operates to stay the decision appealed against.

59X. Proceedings before the Board and procedure
(1) The Guardianship Board is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit.
(2) Proceedings before the Board shall be conducted with as little formality and legal technicality and form as the circumstances of the case permit.
(3) Despite subsection (2), the Board shall have power to hear, receive and examine evidence on oath.
(4) Proceedings before the Guardianship Board shall be open to the public unless the Board, in any particular case, determines that it is in the interests of the mentally incapacitated person the subject of the proceedings, or for some other good reason, that those proceedings should be conducted wholly or partly in the absence of the public.
(5) The procedure for any hearing of the Board shall, subject to any rules made under section 59Z, be as determined by the Board.

### Mental Health Ordinance 《精神健康條例》

59Y. Right of appearance
(1) In any proceedings before the Guardianship Board, the following persons may appear in person or be represented by counsel or a solicitor, namely—
(a) an applicant making a guardianship application under this Part;
(b) the mentally incapacitated person the subject of the application;
(c) the Director of Social Welfare or a public officer in the Social Welfare Department.
(2) The Guardianship Board may, if it appears to the Board that any person entitled to appear in person before it under subsection (1) ought to be separately represented by counsel or a solicitor—
(a) order that the person be so separately represented; and
(b) make such other orders as it thinks necessary for the purpose of securing separate representation for that person.