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THE LAW REFORM COMMISSION OF HONG KONG - page 78 / 360

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Method of appointment

3.38The 1989 Act prescribes a simple method of appointment to encourage parents to appoint guardians.309  It is no longer necessary for appointments to be made by deed or will.  However, the document of appointment must be in writing and signed by the person making the appointment.  The document must be signed at his direction, and in the presence of two witnesses who should each attest the signature.  An appointment made by a will which is not signed by the testator must be signed at the direction of the testator and witnessed in accordance with the provisions of section 9 of the Wills Act 1837.310

Revocation of appointment

3.39Appointments by parents or guardians may be revoked by one of the following methods:

(a)by making another appointment unless it is clear that the purpose is to appoint an additional guardian,311

(b)by a written document revoking the appointment,312 or

(c)by destruction of the document with intention to revoke the appointment.313

If the appointment is made in a will, it is revoked if the will is revoked.314  Section 4 of the Law Reform (Succession) Act 1995 provides that, unless a contrary intention is shown in the instrument of appointment, any appointment by the deceased testator of the former spouse as guardian is deemed to have been revoked at the date of the divorce.  This also applies to nullity.315

Disclaiming the appointment

3.40The Act provides for a right to disclaim appointments made by a parent or guardian but not to those made by the court.316  The disclaimer must be made by an instrument in writing, signed by the appointee and made “within a reasonable time of his first knowing that the appointment has taken effect”.  It must also be recorded in compliance with any regulations that may be made by the Lord Chancellor.

Court appointment of guardians

3.41The court may appoint an individual to be a child’s guardian if the child has no parent with parental responsibility, or a parent or guardian with a

309 Section 5(5).

310 Section 5(5)(a).

311 Section 6(1).

312 Section 6(2).

313 Section 6(3).

314 Section 6(1)-(4).

315 The 1995 Act has effect as regards an appointment made by a person dying on or after 1 January 1996.  See Family Proceedings (Amendment) Rules (SI 1996, No 816) (L.1) for changes to the relevant forms.

316 Section 6(5) and 6 (6).

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