Letters | Ageing Hong Kong needs better laws to protect the elderly and dementia sufferers

Hong Kong citizens suffering from dementia could reach 300,000 within the next 15 years. The question as to who will care for these individuals presents a serious problem

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There is a duty to consider a person’s past and present wishes, feelings, beliefs, values and other factors, which they would consider if they were able to do so, and to allow them to participate in decision-making as fully as possible. However, in Hong Kong currently, decision-making is substituted in favour of the guardian or committee. Photo: AFP

Published: 7:20am, 26 Mar 2019Updated: 11:29am, 15 Apr 2019

An ageing population presents numerous difficulties for society, especially concerning the problem of how to protect our elderly citizens. Statistics suggest that there will be a significant increase in Hong Kong citizens suffering from dementia, which could reach 300,000 within the next 15 years. The question as to who will care for these individuals presents a serious problem for the city.

In legal terms, protection of our elderly, particularly those suffering from dementia, is lagging behind other Asian territories, with outdated legislation regarding mental incapacity. The procedures under the Mental Health Ordinance are outdated, time-consuming and costly.

At present, in Hong Kong, there are two legal procedures for a mentally incapacitated person, and their caregiver, and these are divided between financial care and physical care. For financial matters, when an elderly person suffering from dementia cannot manage his or her affairs, an application can be made to the court and a “committee” appointed. The committee will normally be a relative, a member of a profession or the official solicitor.

In Hong Kong, the court has significant power, including the ability to make a new will on behalf of the incapacitated person, which is expressly not allowed under the legislation in Singapore and England.

In terms of the welfare of an incapacitated person, an application by a relative, social worker or medical practitioner must be made to the guardianship board, consisting of a mixture of medical practitioners and lawyers who have experience in dealing with incapacitated persons. Although the wishes of the incapacitated person will be ascertained where possible, the guardian, once appointed, has significant power over them, including control over their residence, medical and dental treatment. The guardian can withdraw approximately HK$17,000 per month from the assets of the incapacitated person for maintenance, which may be inadequate in many cases.

In England and Singapore, the legal principle to act in the best interests of the mentally incapacitated person is statutory and this safeguards the protection of vulnerable people. There is a duty to consider a person’s past and present wishes, feelings, beliefs, values and other factors, which they would consider if they were able to do so, and to allow them to participate as fully as possible. However, in Hong Kong currently, decision-making is substituted in favour of the guardian or committee.