RE TBS

RE TBS

The Court has jurisdiction to make interim residential, care and access arrangements for a mentally incapacitated person pending appointment of a guardian by invoking its inherent protective jurisdiction to cover matters not squarely within s10A; s10A applies to property and affairs and may cover residential and financial provision but does not by itself encompass all care/access arrangements; the 2nd Interim Arrangements ordered were in Mother’s best interests and do not fetter the Guardianship Board.

Citation
[2019] HKCFI 2919
Parties
Mentally Incapacitated Person: TBS; Applicants: Applicants (three children); Intervenor: Intervenor (2nd son); Official Solicitor/committee: Official Solicitor
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 December 2019
Case Number
HCMH51/2019
Procedural Posture
Part II Mental Health Ordinance Proceedings / Post Inquiry; Appointment of Committee and Interim Arrangements (reasons for Decision)
Outcome
Mother declared mentally incapacitated; Official Solicitor appointed as Committee; Court made interim arrangements (2nd Interim Arrangements) governing residence, care, access and finances pending appointment of guardian by Guardianship Board.
Legal Topics
Interim Care Orders, Appointment of Committee, Jurisdiction to Make Interim Arrangements, Part II Mental Health Ordinance S10 a, Guardianship Board Proceedings
Source Language
EN
Mental Health Law Guardianship Inherent Jurisdiction Elder Law Interim Care Orders Appointment of Committee Jurisdiction to Make Interim Arrangements Part II Mental Health Ordinance S10 a +1 more

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Parties

TBS

Mentally Incapacitated Person

Applicants (three children)

Applicants

Intervenor (2nd son)

Intervenor

Official Solicitor

Official Solicitor/committee

Procedural Posture

Part II Mental Health Ordinance Proceedings / Post Inquiry; Appointment of Committee and Interim Arrangements (reasons for Decision)

Legal Issues

  1. 1 Whether Court has jurisdiction to make interim care/access arrangements under Part II of the Mental Health Ordinance or under inherent protective jurisdiction
  2. 2 Scope of s10A "property and affairs" and whether it covers care and access arrangements
  3. 3 Whether interim arrangements fetter the Guardianship Board

Ratio Decidendi

The Court has jurisdiction to make interim residential, care and access arrangements for a mentally incapacitated person pending appointment of a guardian by invoking its inherent protective jurisdiction to cover matters not squarely within s10A; s10A applies to property and affairs and may cover residential and financial provision but does not by itself encompass all care/access arrangements; the 2nd Interim Arrangements ordered were in Mother’s best interests and do not fetter the Guardianship Board.

Court Disposition

Mother declared mentally incapacitated; Official Solicitor appointed as Committee; Court made interim arrangements (2nd Interim Arrangements) governing residence, care, access and finances pending appointment of guardian by Guardianship Board.

Orders

  • Official Solicitor appointed as Committee for Mother with agreed powers
  • Order incorporating the 2nd Interim Arrangements (residential arrangements at Kwai Chung Flat; care by domestic helper Lily)