Enduring power of attorney

Enduring power of attorney

 

Definition

According to the Enduring Powers of Attorney Ordinance (Cap. 501) (“the Ordinance”),[1] an enduring power of attorney (EPA) is a legal document that allows a person (a donor) who wishes to give his/her power of attorney to someone to appoint one or more attorney(s) to take care of his/her financial matters in the event that he/she subsequently becomes mentally incapacitated, and do so while he/she is still mentally capable.[2]

 

Key advantages of an EPA

 

  • Preparing for the worst: EPA allows an individual to choose the person or persons who will look after the individual’s affairs if he/she becomes incapable of doing so.

 

  • Cost efficiency: EPA avoids expensive and potentially distressing court proceedings for the appointment of another person to look after the individual’s affairs;

 

  • Avoiding emotional distress: EPA eases the difficulties and distress that may otherwise be suffered by the donor’s family in managing the donor’s affairs.

 

Procedure of executing an EPA

 

The donor may legally sign the EPA under the following two situations:

 

  1. in the presence of both the solicitor and the registered medical practitioner at the same time OR

 

  1. in the presence of the solicitor only at any time not more than 28 days after the donor has already signed it in the presence of the registered medical practitioner.

 

The final step is that the duly prepared EPA shall be brought to the High Court for registration.

 

Restrictions of attorney

 

Generally speaking, the donor can assign anyone who is trusted by the donor to be the attorney to deal with the assets on his/her behalf. However, there are a few restrictions imposed by the Ordinance:

 

  1. The attorney has to be an individual who has attained the age of 18 years and is not bankrupt or mentally incapable.

 

  1. The attorney cannot be the registered medical practitioner or the solicitor witnessing the EPA.

 

  1. The spouse of the registered medical practitioner or the solicitor witnessing the EPA.

 

  1. A person related by blood or marriage to the registered medical practitioner or the solicitor witnessing the EPA.[3]

 

Please feel free to contact us at 69776708 for Mr. Lam or make an appointment.

[1] Enduring Powers of Attorney Ordinance (Cap. 501).

[2] Department of Justice, ‘Enduring powers of attorney’ <https://www.doj.gov.hk/en/archive/enduring_powers_of_attorney.html> accessed 7 June 2021.

[3] Enduring Powers of Attorney Ordinance (Cap. 501).

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