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各位老友記，有否想過為癡呆症（即腦退化症），事先做好財務、心理和法律上等各方面的安排？這一節「長者法網智多聲」，就為大家介紹其中一種幫到您們的工具，那就是長者三寶的其中一寶——持久授權書。
持久授權書與一般授權書的最大分別是，持久授權書在授權人喪失精神行為能力後，仍然會有效，而一般授權書就會失效。任何人在精神上有能力行事時訂立了持久授權書，如果日後變得精神上無行為能力，獲委任的人就可以為他打理財務。我們叫給予權力的人作授權人，而獲得權力的就是代理人。
持久授權書只可以授權代理人打理財產和財務問題，亦必須要採用法例訂明的表格，否則就會無效。授權人要在持久授權書內，明確地指明代理人有權處理哪些具體的資產或財務事項，不可以籠統地表示「處理我所有財產」。聽起來好像很難，但法定表格有格子讓您剔，可以幫助您作出選擇。授權人亦可以限制代理人的權力和選擇持久授權書何時生效。授權人可以委任多於一名代理人，好等他們互相幫助或監察對方。
決定了細節和填好表格後，授權人必須要在一名註冊醫生和一名香港律師面前，簽署持久授權書。註冊醫生要核證和信納授權人在精神上有能力行事；律師也要核證授權人看來在精神上有能力行事。至於代理人就要在見證人在場之下，簽署持久授權書。
簽署持久授權書可有助您未雨綢繆，不用擔心有如簽了賣身契一樣，一世被綑綁。授權人只要精神上仍然有行為能力，就可以隨時撤銷持久授權書，如果授權人一度變得精神上無能力行事，康復後，亦可以向法院申請撤銷持久授權。
法例規定，持久授權書要在法院完成註冊，才是完成所有法例規定的程序，否則代理人不可以處理授權人的資產。所以，當授權人變得精神上無能力行事時，而較早前還未將持久授權書拿到法院註冊，代理人就要盡快行事了。
要留意了，無論是代理人、見證簽名的註冊醫生、律師或見證人，並不是任何人都可以擔任的，而填寫持久授權書期間，也有很多東西需要留意，填錯了，持久授權書就會無效的了。詳情可以參考長者社區法網文字版或諮詢律師。
最後為大家說個故事吧。陳伯最近常常忘記事情，說話不清不楚，陳太於是想安排丈夫弄一份持久授權書。但律師說，持久授權書一定要在授權人精神健全時訂立的，建議他們不如先問問醫生。結果，幾位醫生都診斷陳伯患了癡呆症，亦即腦退化症，精神上已經沒有行為能力。陳伯不能訂立持久授權書，陳太就頭痛了。因為家裡大部份資產，好像是銀行帳戶和股票等，都是陳伯個人名下持有，沒有持久授權書，陳太就不能動這些資產，她只能夠用夫婦聯名戶口的存款和自己的「私己錢」來應付陳伯的醫療費及養家。陳太還要擔心，她那個不務正業的不肖子會趁陳伯有病，帶他到銀行提取所有存款。結果陳太要趕緊找律師，向法庭申請處理陳伯的財產，多花費金錢之餘還要擔心好一陣子。大家想想，假如陳伯早些訂立持久授權書，陳太是否不用為錢憂心呢？這一節就說到這裡，多謝大家收聽。
PrintHypothetical cases
Case 1: Mr. X
Mr. X, who was 60 years old and financial relatively well-off, began to show signs of memory loss, decreased ability to think, language impairment, inability to recognize relatives, and other indicative signs of dementia. Mrs. X heard about the concept of an EPA and thought that it was a good idea to get Mr. X sign an EPA. She promptly got a solicitor to advise her on the feasibility of making an EPA for Mr. X. The solicitor told her that since Mr. X already showed signs of dementia, it was perhaps too late to try to do an EPA because Mr. X had to do it while he was still mentally sound. The solicitor then recommended Mr. and Mrs. X to consult a medical doctor as soon as possible to ascertain Mr. X’s mental status. Mrs. X brought Mr. X to consult a few medical practitioners; and all of them diagnosed Mr. X as suffering from dementia and was no longer mentally capable. Naturally, none of these medical practitioners are prepared to certify on an EPA that Mr. X is mentally capable. Now apart from taking care of Mr. X’s physical well-being, the X family has to face the following financial problems:
- While the family appears relatively well-off, most of the family assets, including cash in banks and shares in publicly listed companies are held in Mr. X’s sole name.
- Therefore, Mrs. X is not able to touch or liquidate those assets to cater for the family’s fiscal expenses and Mr. X’s medical expenses.
- Mr. and Mrs. X have a joint account at a bank, with a balance of several hundred thousand dollars. Mrs. X will be able to withdraw money from this account. But it is expected that the money in this account will be depleted within a few years (or maybe within an even shorter period).
- Mrs. X will now have to rely on her own savings to support the family.
- Mrs. X will also have to sell some of her jewellery to get some cash. Luckily most of her jewellery is kept in a safe deposit box in her own name.
- Mrs. X understands that Mr. X has kept some rare coins which would worth some money. Those coins were kept in a safe deposit box in Mr. X’s sole name. So again Mrs. X cannot access them.
- The most disturbing matter is their son. Mr. and Mrs. X have a son, who unfortunately is a spendthrift and has never had a proper job even though he is already 40 years old. The relationship between the parents and the son is of course bitter. However, since this is their only son, Mr. and Mrs. X still love him and have tolerated him and financially supported him for years. Now Mrs. X is very worried that their son will take advantage of Mr. X’s mental condition by, for instance, taking Mr. X to the bank to withdraw a large sum of money and get the money for himself.
Now, Mrs. X has to engage a lawyer to apply to the Court in order to deal with Mr. X’s property according to the Mental Health Ordinance. The procedure is much more complicated. While waiting for the outcome, Mrs. X keeps worrying all the time.
Evidently, none of the above disastrous events would happen if Mr. X had made an EPA while he was still mentally capable.
Case 2: Ms. Y
Ms. Y made her EPA when she was still mentally capable. Ms. Y’s husband passed away years ago and left her with a reasonably generous estate. She had 2 sons. The elder one, unfortunately, was a prodigal who had left the family years ago. He broke Ms. Y’s heart so much that she did not consider this man her son anymore. Fortunately Ms. Y’s second son was a man with filial piety; he lived with and took care of Ms. Y who was approaching 70 years old. The second son was also the attorney under the EPA. The EPA expressly specifies that it would take effect when Ms. Y was diagnosed to be mentally incapable. The EPA also contained sufficiently clear and specific instructions as to how the second son should handle Ms. Y’s property and financial affairs. It also empowered the second son to transfer Ms. Y’s money to his bank accounts set up for the sole purpose of accommodating and administering Ms. Y’s assets. Recently the second son noticed that Ms. Y was showing some obvious signs of dementia. This sad fact was verified by the family’s doctor. The second son took the EPA to his solicitor and sought legal advice. Then:
- The solicitor assisted the second son by taking the EPA to the Court for registration.
- The second son was a righteous man but was not doing very good in his career. His income barely supported himself and could not maintain Ms. Y’s living standard. Fortunately, pursuant to section 4(5) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong), the second son was able to access Ms. Y’s assets to a certain extent while waiting for the registration of the EPA.
- Upon the completion of the registration process, the second son was able to gain full access to Ms. Y’s assets. With the assistance of the EPA, he was able to use Ms. Y’s financial resources to take good care of her.
- Then the elder son appeared after years of disappearance. He asked the second son to give him his “share” in their parents’ fortune. The second son of course refused.
- The elder son tried to approach Ms. Y and take advantage of her mental incapacity. Fortunately, as empowered by the EPA, the second son had set up a fresh bank account in his own name, where this bank account was used solely to take up Ms. Y’s money. The second son was also wise enough to have withdrawn all money from Ms. Y’s bank account and transferred the money into this fresh bank account in his name.
- Even if the elder son took Ms. Y to a bank and tried to withdraw money, there was no money in Ms. Y’s account at all.
- The second son continued to take good care of Ms. Y.
By comparing Ms. Y’s case with Mr. X’s, one would easily note that the difference is sufficiently evident to necessitate any further explanation. While the word “fortunately” is used a number of times in the above hypothetical case of Ms. Y, it is not fortune which brings forth such a difference. It is Ms. Y’s good preparation for the future; and the key is the EPA.