6.49We recommend 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 at the Legal Aid Department, and the District Offices where the Free Legal Advice Scheme of the Duty Lawyer Service operate. We also recommend 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.
Appointment by guardian
6.50It does not seem that there is any statutory provision in Hong Kong allowing a guardian to appoint a guardian to act for him in the event of his death. In England, however, section 5(4) of the Children Act 1989 provides that a guardian may appoint a guardian to take his place as the child’s guardian in the event of his death. We recommend the adoption of a provision on the lines of section 5(4) of the Children Act 1989.
Views of child on appointment of guardian
6.51Section 7(6) of the Children (Scotland) Act 1995 provides that a decision on appointment of a guardian is treated as a major decision which involves exercising a parental right under section 6. Section 6 provides that the views of the child should, so far as practicable, be taken into account in making a major decision. This is more relevant to an older child and is a reasonable provision considering that, if the parents are divorced, the guardian will be caring for the child. We recommend that a similar provision to section 7(6) of the Children (Scotland) Act 1995 be introduced.
6.52Section 5 of the Guardianship of Minors Ordinance (Cap 13) gives power to appoint a guardian where a testamentary guardian refuses to act. There is no provision for a guardian to disclaim. In England, a guardian who does not want to act as such may disclaim by an instrument in writing under section 6(5) of the Children Act 1989. The Scottish Act provides that an appointment cannot take effect unless accepted expressly or impliedly by acts which are not consistent with any other intention.710
6.53We 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 it, 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.
710 Section 7(3) of the Children (Scotland) Act 1995.