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THE LAW REFORM COMMISSION OF HONG KONG - page 80 / 360

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foreign legacy or money from a pension fund or insurance policy and either his parents are dead or for some reasons cannot give an adequate receipt.326

3.46The Law Commission stated that:

“following the Law of Property and Settled Land Acts 1925 guardianship of the estate became less significant because a legal estate in land can no longer be held by a minor but instead is held by trustees as statutory owners ... a guardian has the right to recover rents and profits from the minor’s land.” 327

3.47The Commission explained that this means that:

he can control the income due to the infant and any of the personal profit to which the infant is legally as well as beneficially entitled, but is not entitled to receive or exercise powers over property to which the infant has only beneficial title, except income as it becomes payable.”328

3.48The Commission argued that trusteeship would adequately and more appropriately fill any gap.329  However, the government disagreed and the 1989 Act preserves the High Court’s power to appoint guardians of the estate of any child but only in accordance with rules of court.330

3.49Under the rules of court,331 only the Official Solicitor can be appointed as the guardian of the estate of a child.  The appointment can be made only when the consent of the persons with parental responsibility has been signified to the court or when such consent cannot be obtained or may be dispensed with.  Furthermore appointments may be made only in the following circumstances:

(a)where money is paid into court on behalf of the child (in accordance with directions given under rule 12(2), control of money recovered by a person under disability),

(b)where the Criminal Injuries Compensation Board notifies the court that it has made or intends to make an award to the child,

(c)where a foreign court notifies the court that it has ordered or intends to order that money be paid to the child,

(d)where the child is entitled to proceeds of a pension fund, and

(e)where such an appointment seems desirable to the court.

In practice such appointments are confined to cases where the parents are dead or where it is unsuitable for them to be involved.332

326 Law Com Working Paper, (1985: No. 91) paragraph 2.23, footnote 95.

327 Paragraph 2.23.

328 Idem.

329 Law Com No 172, paragraph 2.24.

330 Section 5(11) and (12).

331 Rules of the Supreme Court, Order 80, rule 13.

332 As when the injuries to the child had been caused by the parents.

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