Best Interest Versus Wishes of a Mentally Incapacitated Person – Which Should Prevail?

This is the second part in a series of two articles which examines a particularly complex case from the Mental Health Court. The first article set out the background of the case. This article reviews how the court arrived at its eventual Judgment and the implications of the Ruling.



Whether the court should intervene is a matter of discretion and depends on the facts of each individual case. On the one hand, the Mental Health Court should give due weight to the wishes of the MIP as expressed in his EPOA. On the other hand, there may well be other circumstances which require the court to intervene to protect the interests of the MIP. Ultimately, the interests and the requirements of the MIP, not those of the other family members, remain the main considerations. Lok J. noted specifically that “The Mental Health Court should guard against any attempt by the family members of the MIP to make use of the mental health proceedings to advance their own personal interests.”

To ascertain the best interests of the MIP, the court, after citing several English authorities and considering section 8 of Article 14 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBORO”), Lok J. concluded that the subjective views and feelings of the MIP before mental incapacitation should be paid “due regard”. He observed, “Unless such views and wishes are plainly contrary to the well-being of the MIP, the court cannot substitute its own view with that of the MIP as to what is in his best interest” (emphasis added).


The court also examined the approach towards findings of facts in an inquiry under the MHO. C cited authorities that established the general position that the Mental Health Court should take a broad-brush approach in an inquiry under Part II of the MHO, and should not be embroiled in factual issues. Any resolution of disputed factual issues should only be to the extent necessary to the decision as to what is in the MIP’s best interests. For this reason, C adopted the position that she is not asking the court to make any factual findings on the various allegations that she had raised.

However, Lok J. considered that whether a broad-brush approach should be adopted without findings of facts depends on the context and the circumstances of each individual case. The present case is different in that the MIP had signed an EPOA and C is not seeking to rely on past conducts to undermine the validity of the EPOA. Lok J. expressed the view that “If the views expressed by Mrs A in the EPOAs were genuine, then the court would be interfering with her view and wish to have her own affairs to be handled by her chosen attorney and not a stranger. This would hardly be in her interest.”

Lok J. went on to say that in the absence of any positive finding by the court that a case of abuse has been made against the existing attorney, it would be going against the donor’s rights under Article 14 of s 8 of HKBORO, if a Committee is to be appointed at the instigation of the application in mental health proceedings.


Applying the above principles to the present case, the court found that:

  1. the relationship between Mrs A and C had deteriorated from 2003, and there was no serious evidence to suggest that Mrs A had suffered any mental incapacity, or was in a vulnerable position or under any undue influence prior to 2010;
  2. Mrs A had, rightly or wrongly, formed a negative view towards C and that C was the one behind orchestrating various mistreatments against her; and
  3. as early as 2009, influenced by the saga of events arising from the appointment of a Committee for her late husband (who was a MIP back then), Mrs A formed a negative view of a Committee and she did not want a stranger to take care of her affairs if she were to lose her mental ability.

The court acknowledged that such views held by Mrs A may be prejudiced, biased or unfair but it is not the role of the court to “correct” such views or values. The Mental Health Court has to pay due regard to the negative views Mrs A had held against C before 2010.

Since the evidence of undue influence was not conclusive, due regard should be paid to the subjective views and wishes held by Mrs A (whether prejudiced, biased or unfair), when such views (rightly or wrongly) were formed when Mrs A had the requisite mental capacity and was not subject to undue influence. A fortiori, the statutory requirements for the execution of an EPOA ensure the donor executed the EPOA with full mental capacity.

All in all, the court concluded that without specific finding of facts relating to the propriety of the EPOAs, there is insufficient reason for the court, in the interest or for the requirements of Mrs A (which is implicit in the execution of the Impugned Documents), to appoint a Committee.


The court also raised practical considerations in reaching the conclusion above, including the undesirable situation where findings from the court will be used by C to challenge disadvantageous findings in another competent court of law. Moreover, B and C are the de facto key players in the longstanding dispute that will inevitably drag on, even upon the death of Mrs A. With Mrs A properly taken care of, the court questioned how the appointment of a Committee will serve any good for Mrs A. Further, C could well have challenged the validity of the EPOA herself. If C decided not to do so, there was little justification for the court to appoint a Committee which may go against the wishes and views of Mrs A. Last but not least, the possibility of collateral use of the documents obtained by a Committee by C in other litigation matters was also a concern shared by the court.


Subsequently, C appealed the Judgment. C submitted that the CFI wrongly applied a “plainly contrary test” (and applied the “substituted judgment” standard as opposed to the “best interests” standard) by giving presumptive weight to the past wishes and views of Mrs A. The key complaint was with the application of the “plainly contrary test” as opposed to a “best interest test” by Lok J.

In February 2019, the Court of Appeal (“CA”) confirmed the CFI Judgment [2019] HKCA 321, unreported. In summary, the CA found that on a reading of the judgment as a whole and in context, it was clear that the Judge did not “apply a plainly contrary test”. The CA held that the CFI judge clearly applied the “best interests” approach without regarding such wishes and views as conclusive. The CA observed that the CFI judge decided to give great weight to Mrs A’s views and feelings in light of the context of the specific purpose for the appointment of a Committee in the present case.


The Judgment, which clarifies the relationship between an EPOA and a Committee, further aligns the position under Hong Kong law with those under common law jurisdictions, where the existence of an EPOA may be an important consideration against the appointment of a Committee or its functional equivalent, save in an established case of abuse by the attorney or an invalidly executed EPOA (e.g. under undue influence).

The Judgment is also the first ever local caselaw on the ascertainment of wishes and views of a MIP with an insightful discussion as to their relationship with the best interest of a MIP, where estate management documents of the likes of wills, EPOAs and deed of gift, which in turn are indicative of the subjective perceptions of a MIP, clearly swayed the decision of the CFI. The CA emphasised that when a MIP had previously indicated that he or she would not wish to have a Committee it did not bar the court to have regard to other relevant factors. For any similar potential applications in the future, the CFI and CA have handed down an instructive and persuasive precedent. Although the case is unique in itself in many ways, the decision of the courts shed light on how an individual can take steps to ensure that one can plan ahead properly, knowing his choice and autonomy will be respected even if he loses the ability to take care of himself one day. 




Partner, DLA Piper
Harris has in-depth experience in commercial litigation and brings extensive court experience across all court levels in Hong Kong and arbitration. His broad clientele includes banks, securities companies, listed companies and high net worth individuals in Hong Kong, PRC and abroad.

Harris' practice covers advising on shareholders' and directors' disputes, winding-up proceedings, banking and investment disputes, construction disputes, internet fraud, and employment and administrative law matters. Harris also has vast experience in handling regulatory defence matters concerning investigations by the Securities and Futures Commission and white-collar crimes involving the Independent Commission Against Corruption and the Commercial Crime Bureau.

Of Counsel, DLA Piper

Sandy practices general civil and commercial litigation, with particular focus on construction law, probate and private wealth cases. Her clients include major contractors and developer, high
net-worth individuals and private equity funds.