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Hong Kong Law Reform Commission |
(a) the adoption of a provision similar to section 5(5) of the English Children Act 1989[189] that parents who have parental rights and authority may appoint guardians by a document in writing, with their signature attested by two witnesses, without the need to make a formal will or deed;
(b) the introduction of a standard form for the appointment of a guardian, which should explain briefly a guardian’s responsibilities and be signed by the proposed guardian. (These forms could be made available, for example, at the Legal Aid Department and the District Offices where the Free Legal Advice Scheme of the Duty Lawyer Service operates, and on the Internet);
(c) that the guardian should have to accept office as guardian expressly
or impliedly if he has not formally consented to act as guardian. This could
also be achieved by the completion of a
form.
Recommendation
2
(Disclaimer)
We recommend that there should be
a system for withdrawing from acting as a guardian similar to the system for
appointing a guardian. If the proposed guardian had already consented to act,
by signing the appropriate form, then he would have to formally disclaim if he
did not want to act at a later time. The disclaimer should be formal, in
writing, and notified to the executor or administrator of the estate. The
Director of Social Welfare should be notified of the disclaimer if there is no
executor, administrator or surviving parent, so that steps can be taken to
protect the best interests of the child.
Recommendation
3
(Veto of surviving parent)
We recommend that
the right to veto of the surviving parent in section 6(2) of the Guardianship of
Minors Ordinance (Cap 13) should be removed. Then, either the surviving parent
or the guardian could apply to a court under section 6(3) if there is a dispute
between them on the best interests of the
child.
Recommendation 4
(Views of child
on appointment of guardian)
We recommend that a similar provision
to section 7(6) of the Children (Scotland) Act
1995[190] be introduced so that
the views of the child on the appointment of the guardian may, so far as
practicable, be taken into account.
Recommendation
5
(When appointment of guardian takes effect)
We
recommend that:
(a) a testamentary guardian should be able to act on the death of the parent who appointed the testamentary guardian if the child was residing with that parent prior to his death. The appointment of the testamentary guardian would not take immediate effect on the death of the parent but a pro-active step of obtaining the court’s permission would have to be taken by the guardian;
(b) if a parent had obtained a custody order prior to his death, then a
testamentary guardian appointed by that parent should be able to act
automatically as testamentary guardian on that parent’s
death.
Recommendation 6
(Court
appointment of guardian)
We recommend that section 7 of the
Guardianship of Minors Ordinance (Cap 13) be repealed and a similar provision to
section 5(1) of the English Children Act
1989,[191] with regard to the
appointment of a guardian, be enacted.
Recommendation
7
(Appointment by guardian)
We recommend the
adoption of a provision along the lines of section 5(4) of the English Children
Act 1989 allowing a guardian to appoint a guardian for the child in the event of
the guardian's
death.[192]
Recommendation
8
(Removal or replacement of guardian)
We
recommend that section 8 of the Guardianship of Minors Ordinance should be
retained, but that it should be amended to give similar powers to the District
Court.
Recommendation 9
(Guardian of the
estate)
We recommend the retention of the status quo in relation
to the powers of the Official Solicitor to act as guardian of the
estate.
[189] See Annex 2, below, for the text of the provision.
[190] See Annex 2, below, for the text of the provision.
[191] See Annex 2, below, for the text of the provision.
[192] See Annex 2, below, for the text of the provision.