RE MADAM L

RE MADAM L

Section 10D, read in context with s10A and s10B and in light of legislative history, permits the court in appropriate cases to make immediate provision to protect an alleged mentally incapacitated person's property including appointment of a person to act (preferably as an interim receiver rather than a next friend) and to authorise commencement of proceedings to recover misappropriated property pending inquiry; alternatively s21L and the court's inherent jurisdiction supply the same power if a narrow bilingual reading would otherwise preclude it.

Citation
RE MADAM L
Parties
Applicant/guardian: Director of Social Welfare; Alleged Mentally Incapacitated Person: Madam L; Intervener/authorized to Take Over Proceedings: Official Solicitor; Alleged Recipient/recipient of Entrusted Funds: Mr T; Defendants/registered Proprietors of Property: Purchasers (caretaker and wife)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 October 2004
Case Number
HCMP2042/2004
Procedural Posture
Application Under Part II Mental Health Ordinance (guardianship and Management of Property) / Interim Relief Granted Pending Inquiry Into Mental Capacity (pre Inquiry Interlocutory Stage)
Outcome
Interim directions previously made on 31 August 2004 affirmed and varied: interim protective measures to remain in force pending inquiry; person to be described as interim receiver rather than next friend; Director presently to continue conduct of High Court action with Official Solicitor authorised to take over to...
Legal Topics
Interim Relief, Appointment of Interim Receiver, Next Friend Doctrine, Bilingual Statute Interpretation, Power to Commence Litigation on Behalf of Alleged Patient
Source Language
EN
Mental Health Law Guardianship Civil Procedure Statutory Interpretation Equity/receivership Interim Relief Appointment of Interim Receiver Next Friend Doctrine +2 more

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Parties

Director of Social Welfare

Applicant/guardian

Madam L

Alleged Mentally Incapacitated Person

Official Solicitor

Intervener/authorized to Take Over Proceedings

Mr T

Alleged Recipient/recipient of Entrusted Funds

Purchasers (caretaker and wife)

Defendants/registered Proprietors of Property

Procedural Posture

Application Under Part II Mental Health Ordinance (guardianship and Management of Property) / Interim Relief Granted Pending Inquiry Into Mental Capacity (pre Inquiry Interlocutory Stage)

Legal Issues

  1. 1 Whether s10D of the Mental Health Ordinance authorises interim orders including appointment of a person to commence proceedings on behalf of an alleged mentally incapacitated person prior to determination of incapacity
  2. 2 Whether appointment should be as next friend under Order 80 or as an interim receiver
  3. 3 Whether the Chinese version of s10D restricts the section to provision of funds and how to reconcile bilingual texts

Ratio Decidendi

Section 10D, read in context with s10A and s10B and in light of legislative history, permits the court in appropriate cases to make immediate provision to protect an alleged mentally incapacitated person's property including appointment of a person to act (preferably as an interim receiver rather than a next friend) and to authorise commencement of proceedings to recover misappropriated property pending inquiry; alternatively s21L and the court's inherent jurisdiction supply the same power if a narrow bilingual reading would otherwise preclude it.

Court Disposition

Interim directions previously made on 31 August 2004 affirmed and varied: interim protective measures to remain in force pending inquiry; person to be described as interim receiver rather than next friend; Director presently to continue conduct of High Court action with Official Solicitor authorised to take over to...

Orders

  • Director of Social Welfare as guardian to issue a protective writ as next friend of Madam L and register it as lis pendens against the specified property (order affirmed subject to variation)
  • Official Solicitor authorised to take over and conduct proceedings in the name of or on behalf of Madam L to set aside the assignment dated 6 February 2004