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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。
PrintQuestions and answers
1. I am getting old and I want to let my son take care of my financial affairs for me. He is a fine gentleman and I trust him completely. I know that there is something called a General Power of Attorney, where I can appoint my attorney to do virtually anything he can do lawfully. I also know that it is simple, straight-forward, effective and does not involve much legal costs. This is the perfect solution for me, right?
Wrong. Under normal circumstances, a General Power of Attorney is, as you have said, simple and effective. But if you are getting old, you should seriously consider the possibility that you may become mentally incapacitated, whereby a General Power of Attorney will cease to be effective. You should therefore consider using an Enduring Power of Attorney to appoint an attorney to take care of your financial affairs. An Enduring Power of Attorney will “endure” your mental incapacity and give power to your attorney to continue to take care of your financial affairs despite such incapacity.
2. My friend, who is a solicitor, told me about something called an Enduring Power of Attorney, which will allow someone to take care of my financial affairs if I become mentally incapacitated. That seems to be a good idea. So I can just sign an Enduring Power of Attorney appointing my son to be my attorney, and he will take care of everything, right?
Well, your son, i.e. your attorney cannot take care of “everything”. The law prescribes that a donor under an Enduring Power of Attorney must specify the particular matters, property or affairs in relation to which the attorney has authority to act. So you have to do something more than just signing a document.
3. So I can just write a few words making the appointment, sign it, and perhaps get a friend to witness my signature. Then that’s all there is to it, right?
No. Under the present law, an Enduring Power of Attorney must be in the prescribed form, which means the Form(s) set out in the Schedules to the Enduring Powers of Attorney (Prescribed Form) Regulation (Cap.501A of the Laws of Hong Kong). There are also specific requirements as to who can or cannot be the witness of your and the attorney’s signatures on an Enduring Power of Attorney. It is therefore suggested that you seek legal advice if you are serious about making an Enduring Power of Attorney.
4. I am getting old and I want to execute an Enduring Power of Attorney. I have three grown up children who are all fine and trustworthy persons. But I want to let my wife handle my financial affairs in case I become mentally incapacitated.
Basically you are free to appoint whatever person you like to be your attorney under an Enduring Power of Attorney. However, if you are getting old, probably your wife is also getting old; so it may not be a good idea to have your wife to handle your financial affairs by herself. Maybe you can consider letting your wife and one of your children to be your attorney jointly and severally, so that either one of them can exercise their power as an attorney and take care of your financial affairs in case you become mentally incapacitated.
5. The idea of an Enduring Power of Attorney sounds good, but I still cannot brush away the fear that my attorney may become vicious when I become mentally incapacitated. Is there anything in the law which can offer me some protection?
An Enduring Power of Attorney cannot guarantee that the attorney will always be a trustworthy person. But the existing law provides that a donor can impose restriction on the attorney’s power by stating those restrictions in the Enduring Power of Attorney. It also allows the donor to nominate person(s) to be notified by the attorney applying for registration of the Enduring Power of Attorney. Further, an “interested party” is entitled to raise queries on an attorney’s behaviour and even ask the Court to remove the attorney. Therefore, you can restrict or limit your attorney’s power in the Enduring Power of Attorney. You can also explicitly spell out the name(s) of the person(s) whom your attorney must notify before applying for the registration of the Power of Attorney, so that the notified person(s) can assist in monitoring your attorney’s acts when you have become mentally incapacitated.
6. I made an Enduring Power of Attorney a few years ago, appointing my eldest son to be the attorney. However, recently I noted that he was indulging in gambling and I don’t trust him anymore. I now want to appoint my youngest daughter to be the attorney. What should I do?
First of all, you have to revoke your existing Enduring Power of Attorney. If you have the Enduing Power of Attorney with you, the most straight-forward method of revocation is simply to tear it into pieces. If you do not have the Enduring Power of Attorney with you (for example you may have already given it to your eldest son), you should get some legal assistance by asking a solicitor to prepare a formal written revocation to revoke your existing Enduring Power of Attorney. Then you will be able to proceed to execute a fresh Enduring Power of Attorney appointing your youngest daughter as the attorney.
7. The idea of Enduring Power of Attorney sounds good. But I am still a bit hesitant about it. If my attorney becomes vicious after I have become mentally incapacitated, what protection do I have?
An Enduring Power of Attorney cannot guarantee that the attorney will always be a trustworthy person. But the existing law provides that an “interested party” is entitled to raise queries on an attorney’s behaviour and can even ask the Court to remove the attorney. Therefore, an attorney’s acts and behaviour could be kept under the surveillance by a number of other persons, including other persons in your family, even though you may have already become mentally incapacitated.
8. My parents are getting old and they want to appoint me as their attorney under their Enduring Powers of Attorney. Of course I am most willing to help. I know I am supposed to take care of their financial affairs if they become mentally incapacitated. But how should I exercise my power? I have siblings and I don’t want to see any dispute arise among us regarding the management of our parents’ assets. Frankly, I don’t want to be blamed by anyone for mismanaging those assets if something goes wrong.
A straight-forward answer to your question is: you should refer to section 12(2) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong), which deals with the duties of an attorney. One further hint is: once you start exercising your power as an attorney, if you always make your parents’ best interests a top priority, you probably won’t make any serious mistake.
9. My son is a solicitor and my daughter-in-law is a medical doctor. So things are easy. They can witness the execution of the Enduring Power of Attorney and my son can be the attorney.
Well, in this case, things are not quite as easy as they seem to be. The existing law provides that the attorney and the witnessing solicitor/medical practitioner (and his/her spouse) cannot be the same person. If you want your son (who is also a solicitor) to be your attorney, then you have to find another solicitor to witness your execution of the Enduring Power of Attorney. For the same reason, your daughter-in-law cannot be the medical practitioner who witnesses your execution of the Enduring Power of Attorney.
10. My nephew is a practicing medical doctor. My daughter is a lawyer in USA and she will return to Hong Kong for a holiday next week. I will just fill in the prescribed form for an Enduring Power of Attorney and get them witness my signature.
Your nephew, being related to you by blood, cannot be the medical practitioner to certify your mental capability under the Enduring Power of Attorney. Your daughter will also certainly express doubt as to whether she can be a witness to the Enduring Power of Attorney. As a lawyer trained in the USA, she may not be aware of the requirement under the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) that an Enduring Power of Attorney must be signed in the presence of a solicitor licensed to practice in Hong Kong. However, as every prudent lawyer will do, she will probably try to ascertain whether she is entitled to be a witness under an Enduring Power of Attorney. It should not be difficult for her to find out and tell you that an Enduring Power of Attorney must be signed in front of a Hong Kong solicitor who is not related to you by blood.
11. Let’s assume that a donor specifies in the Enduring Power of Attorney that it shall take effect when the donor is diagnosed to be suffering from dementia. A few years later, the donor shows symptoms of dementia. The attorney, however, does not lodge the Enduring Power of Attorney with the Court for registration. When the donor is eventually diagnosed to be mentally incapable, the attorney still does not lodge the Enduring Power of Attorney with the Court for registration. Can the attorney exercise his/her powers under the Enduring Power of Attorney? After all, the Enduring Power of Attorney stipulates that it will take effect upon the donor being diagnosed to be suffering from dementia. It appears that the attorney, while breaching the requirement to register it, has not done anything wrong under the Enduring Power of Attorney. So is registration redundant?
No. Let’s imagine this scenario: the attorney brings the unregistered EPA to a bank and tries to withdraw money from the donor’s bank account (on the assumption that this power is listed in the EPA). He/She also brings along a medical certificate confirming that the donor is suffering from dementia. The attorney tells the bank clerk: “Hey, take a look at this EPA; the donor signed it; the doctor signed it; and the lawyer signed it. I also have this medical certificate. So now give me the money.” Will the bank clerk gladly comply? Probably not: Section 4(3) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) states: “In the event of the subsequent mental incapacity of the donor, the attorney shall not do anything under the authority of the power unless or until it is registered.” The bank clerk probably would not comply with the attorney’s request based on an unregistered EPA. Registration of an Enduring Power of Attorney is therefore an essential step in ensuring that the Enduring Power of Attorney becomes effective, and accepted by all institutions.