For mentally incapacitated person, his relative may apply to court for managing his assets and property.
An inquiry by the court under Part II of the MHO involves a two-stage process: (a) the initial stage in which directions are sought from the court, (“the Directions Stage”) and (b) the stage where the actual inquiry takes place (“the Inquiry Stage”).
II. The Directions Stage
An Applicant should have regard to the provisions of s.7 to s.9 of the MHO in the preparation of materials to be placed before the court.
The Applicant’s aim at this stage is to provide sufficient information to enable the Court to give directions for an inquiry to be held under s.10 of the MHO.
Who can apply?
Applications for an inquiry may be made by any of the parties referred to in s.7(3) of the MHO.
Also, a “relative” of the alleged mentally incapacitated person may make the application.
If there is no application by any relative, the Director of Social Welfare or the Official Solicitor or the guardian may apply.
How to apply?
The originating summons should be filed together with the supporting documents and a draft Order for directions to be given at the Directions Stage should also be lodged with the court. A return date for the hearing of the inquiry will not be given at this time. The papers will be placed before a judge for his consideration and directions. No return date will be given until the matter is ready for the hearing of the inquiry
All relevant & necessary information to be provided
At this stage of the application, the Applicant should ensure that there is at least prima facie evidence to justify an inquiry as to the allegation of mental incapacity.
The Applicant is duty bound to provide the court with all relevant and necessary information to enable the court to discharge its statutory duty under the MHO properly. Failure to do so will inevitably delay the application and increase the costs thereof.
The matters set out in s.7 of the MHO are the minimum requirements. In the majority of cases, the court will need much more information before it can discharge its duty properly and give appropriate and proper directions in preparation for the inquiry under s.10.
The Applicant should take the precaution of canvassing the views of the alleged mentally incapacitated person and the relatives before an application is made. If the application is likely to be contested, the court must be informed of this as soon as possible.
A Certificate of Family and Property should accompany the application,
Medical evidence
The requisite medical certificates under s.7(5) are essential.
At least one of the medical certificates must be given by a medical practitioner approved for this purpose by the Hospital Authority within the meaning of the Hospital Authority Ordinance (Cap. 113) as having the relevant special experience.
Application for appointment of a committee of estate (s.11 of MHO)
Where the appointment of a committee of the estate of an alleged mentally incapacitated person is sought, the court must be provided with all relevant and necessary information regarding the members of the proposed committee.
Notice to the Official Solicitor
Notice of the application should be given to the Official Solicitor.
Paper applications
Normally, directions will be given after consideration on the papers without a hearing unless the court considers, whether upon request or on the court’s own motion, that a hearing should be held. Such a request should be made in writing at the time of the filing of the Originating Summons.
Notice of the inquiry must be served on the alleged mentally incapacitated person. Such Notice cannot be dispensed with.
III. The Inquiry Stage
A draft order containing all the reliefs sought in the s.10 hearing must be submitted to the court. A draft order and skeleton bill of costs (if intended to be paid out of the estate of the mentally incapacitated person) shall be lodged with the court at least 10 clear days before hearing (Saturdays, Sundays and public holidays excluded). The court will usually fix the costs pursuant to Order 62 Rule 9(4)(b) instead of directing taxation in order to save costs.
Given the role of the Official Solicitor, applicants should send a set of papers to the Official Solicitor for comment well in advance of the inquiry.
At the inquiry, the court will consider and decide on those matters referred to in s.10 of the MHO.
At the inquiry, the Court may appoint a committee of the estate of the alleged mentally incapacitated person if it is satisfied that the person is, by reason of mental incapacity, incapable of managing and administering his property and affairs.
The court may also direct the sale of any property of the mentally incapacitated person under s.10A and s.10B of the MHO. If this is contemplated, the application should be supported by proper valuation evidence. The draft order should also contain appropriate directions as to conduct of the sale and the distribution or disposal of sale proceeds.
The Trial
In the event that settlement is not achieved the court shall give directions for the future conduct of the proceedings, including where appropriate, the fixing of a Pre-trial Review or final hearing date before the same Judge.
The Judge may also direct inter alia that further evidence be filed, including updated affirmations/affidavits from the parents and/or third parties, updated reports from the Social Welfare Officers and updated reports/reports from other experts.
14 days prior to the trial both parties shall file and exchange an updated and detailed Statement of Proposals relating to the future arrangements for the children.
Both parties shall personally attend all hearings unless the court otherwise directs.
No later than 4 p.m. on the last working day prior to the trial, each party shall exchange with each other and deliver to the court a cost estimate in relation to the children’s arrangements.