Over the past few decades, mental health matters have become increasingly involved and important in various legal matters. This ranges from assessments on a person’s mental state and the presence of mental illnesses, certifications of a sound mind and mental capacity to provision of expert testimony. Here are certain areas that our mental health practitioners can help in various legal matters.
Mental health practitioners are sometimes called in to provide their input for the criminal justice system. When a defendant is suspected to have committed a crime, a psychiatrist may be called in to assess the defendant, not only to determine whether the defendant is mentally fit to plead or stand trial, but also to evaluate if a mental disorder was present during the time of committing the crime. The presence of a mental disorder may affect whether the defendant is convicted of the crime despite having carried out the act. In addition, if the defendant is suffering from a mental disorder, the sentencing laid down may be different as well. Our professionals can write medical reports used in such criminal proceedings, and also appear in court if necessary. Listen to our podcast for more information!
In some instances, our mental health practitioners are invited to provide their input in civil and family disputes between different parties. For example, during a divorce proceeding and determination of the custody of children, psychologists may be called in to provide an assessment and counselling for the children to understand the children’s needs and the impact the separation might have, offering specific interventions if needed.
We all want to spend our hard-earned money to buy the things that we like. However, as we age, or in certain physical conditions, we lose our mental capacity to make discussions on how to spend the money. As such, safeguarding our financial future is very important, and we can take proactive steps to make arrangements before mental capacity is lost. Here are various assessments and services that we can offer:
Enduring Power of Attorney
Written into the laws of Hong Kong, an enduring power of attorney allows you to appoint a specific person or two persons to handle your finances, should you lose the mental capacity to do so one day. Your family normally do not have any legal right to access your finances to maintain your lifestyle, so appointing an enduring power of attorney allows your family to access your funds in a quicker manner if the need arises when you have been deemed to have lost the capacity. This appointment is usually done whilst you still retain the mental capacity, and you can specify exactly what the attorney is allowed to do, such as collect any income, capital, rent or spend your money in a specific manner. Filing an enduring power of attorney application into the High Court of Hong Kong requires a doctor to determine and ascertain your mental fitness.
Fitness to draft a Will
An assessment on the fitness to draft a Will, otherwise known as testamentary capacity, is not a required legal procedure when you draft a Will, specifying what will happen to your finances and capital upon your passing. However, there have been many cases in the past when there has been dispute over whether a Will is valid, or whether the person is of sound mind when the Will was drafted. As such, some people elect to have a doctor, usually a psychiatrist, to assess and to certify that at the time of the drafting of the Will, there is clear mental capacity with an understanding of the extent of the estate, relationships of the family members and the implications. A proper certification would therefore hope to prevent any future arguments, disputes or legal proceedings over the estate.
Part II Order of the Mental Health Ordinance
When a person loses the mental capacity to handle their own finances, banks and other financial institutions cannot simply allow anyone else, such as family members or partners, to access their finances. In such cases, your family members might have to apply to the High Court of Hong Kong, using the Part II Order of the Mental Health Ordinance, to form a committee to decide how to use your finances, and to determine who has access and supervision. This procedure might take months to complete, and requires two doctors, one of whom is a psychiatrist, to certify and make the assessment.
Guardianship
In some cases, a person might not just lose the capacity to handle their finances, but also other aspects in life, such as taking care of themselves or making decisions on their physical wellbeing. In these cases, appointing a formal guardian, filed with the Guardianship Board of Hong Kong, may be required, so someone can help one in such cases. As stipulated in the law, this assessment also has to be carried out by a psychiatrist, and our team is here to help.
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