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THE LAW REFORM COMMISSION OF HONG KONG - page 328 / 360

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15.24We recommend the adoption of a provision on the lines of section 5(4) of the Children Act 1989 that a guardian may appoint a guardian to take his place as the child’s guardian in the event of his death. (Paragraph 6.50)  

Views of child on appointment of guardian

15.25We recommend that a similar provision to section 7(6) of the Children (Scotland) Act 1995 be introduced.  Thus the views of the child should, so far as practicable, be taken into account in making the appointment of a guardian. (Paragraph 6.51)

Disclaimer

15.26We 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.  (Paragraph 6.53)

Court appointment

15.27We recommend that section 7 of the Guardianship of Minors Ordinance (Cap 13) be repealed and a similar provision to section 5(1) of the Children Act 1989 be enacted.  This provides that any individual who wishes to be a guardian may apply to the court to be appointed if the child has no parent with parental responsibility for him or a residence order had been made in favour of the parent who has now died.1371 (Paragraph 6.55)

When appointment takes effect

15.28We recommend that if a parent had obtained a residence 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. (Paragraph 6.61)

15.29We also recommend that 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.  Thus 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. (Paragraph 6.62)  

Veto of surviving parent

15.30We 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 guardian could apply to a court under section 6(3) if

1371 See Annex 1.

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