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Questions 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 behavior 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.