-- Please select --
I. What is an Enduring Power of Attorney?
II. The essence of an EPA and what it can achieve
The relevant laws
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 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?
An attorney’s authority, duties and liabilities
My friend, who is a solicitor, told me about something called Enduring Power of Attorney, which will allow someone to take care of my financial affairs if I get 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?
Duties and liabilities
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 other siblings in our family and I don’t want to see any dispute among us regarding the management of our parents’ assets. Frankly, I don’t want to be blamed by anyone for mismanaging those assets.
Monitoring the attorney
The idea of Enduring Power of Attorney sounds good. But I am still a bit hesitant on that. If my attorney becomes vicious and I have become mentally incapacitated, what protection do I have?
An individual as the attorney
I am getting old and I want to execute an Enduring Power of Attorney to let my son handle my financial affairs in case I become mentally incapacitated. 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.
A trust corporation as the attorney
More than one attorney?
Jointly and severally
I am getting old and I want to execute an Enduring Power of Attorney. I have 3 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.
Registration and notification
What happens between the commencement and completion of the registration?
Notification of the registration
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 to 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 to the Court for registration. Can the attorney exercise his/her power 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, has not done anything wrong under the Enduring Power of Attorney. So registration is redundant?
Revocation by the donor
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 indulged 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?
Revocation under other circumstances
Key advantages of an EPA
III. Requirements and procedures for making an Enduring Power of Attorney
The use of prescribed form(s)
Form 1 or Form 2?
Execution by the donor and the attorney
Execution by the donor
Execution by the attorney
Execution if there is more than one attorney
I am getting old and I want to let my daughter take care of my financial affairs in case I become mentally incapacitated. I know that there is something called Enduring Power of Attorney, where I can appoint my attorney to handle my financial affairs if dementia strikes me. That sounds good. 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 the end of it, right?
Restrictions on the attorney’s authority and notification of named persons
Restrictions on the attorney’s authority
Notification of named persons
The idea of 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?
Certificates by a solicitor and a registered medical practitioner
Certificate by a registered medical practitioner
Certificate by a solicitor
I realize the advantages of making an Enduring Power of Attorney to prepare for the worst. 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 Enduring Power of Attorney and get them witness my signature.
Registration of the EPA
IV. When will an Enduring Power of Attorney take effect?
V. Things to consider when choosing the prescribed form and spelling out the terms
More than one attorney?
Extent of the attorney’s authority
Notification of named persons
Commencement of the EPA
Finding the registered medical practitioner and the solicitor
Who to keep the EPA?
VI. What will happen if a person fails to execute an Enduring Power of Attorney before he/she becomes mentally incapacitated?
VII. What will happen when the donor of an Enduring Power of Attorney eventually becomes mentally incapacitated?
VIII. Guide to prescribed forms of the Enduring Power of Attorney and downloading the forms
Guide to Prescribed Form of the EPA -- Form 1
Guide to Prescribed Form of the EPA -- Form 2
a. Restrictions on the attorney’s authority
One important aspect of an EPA is that no general authority over the donor’s property and financial affairs will be given to the attorney. The authority must be specified in adequate detail. For the same reason, the donor may include restrictions on the attorney’s authority in the EPA. Both Form 1 and Form 2 expressly address the donor: “
You may include any restrictions you like on the authority you give to your attorney. For example, you may include a restriction that your attorney must not act on your behalf until your attorney has reason to believe that you are becoming mentally incapable, or that your attorney must not enter into a contract without first seeking legal advice if its value exceeds a specified amount.”
This mechanism offers more flexibility and freedom to the donor when creating the EPA, so that he/she can retain a certain extent of control over his/her property and financial affairs.
Note that if the donor does not intend to impose any restrictions on the attorney’s authority, the donor must delete the relevant section in the prescribed form(s). The donor cannot simply leave that section blank.