Enduring Powers of Attorney

According to the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong), an enduring power of attorney (EPA) allows its donor (the person who wishes to give their power of attorney to someone), while they are still mentally capable, to appoint an attorney(s) to take care of the donor’s financial matters in the event that they subsequently becomes mentally incapacitated. While a general power of attorney will cease to be effective if one becomes mentally incapacitated, an EPA will “endure” the donor’s mental incapacity and give the attorney the power to continue the donor’s financial affairs despite such incapacity. 

Please note: Please consult a solicitor before signing an enduring power of attorney (EPA).

• It allows an individual to choose the person or persons who will look after the individual’s affairs if they become incapable of doing so;
• It avoids expensive and potentially distressing court proceedings for the appointment of another person to look after the individual’s affairs;
• It provides an efficient and cost - effective way of administering the individual’s property;
• It eases the difficulties and distress that may otherwise be suffered by the donor’s family in managing the donor’s affairs

• If the attorney has reasons to believe that the donor is or is becoming mentally incapable, they must, as soon as practicable, bring the EPA to the High Court for registration.
• The attorney or the donor may also apply for the registration of the EPA soon after executing an EPA, that is, while the donor is still mentally sound.  
• The registration of the EPA is the final formal procedure in relation to an EPA as required by the law.
• An attorney would be effectively barred from dealing with the donor’s assets before the registration process is completed. The registration system is administered by the Registrar of the High Court of Hong Kong. The system will ensure that a register of every EPA in force will be kept with the Court, which in turn will allow any person to inspect any EPA and thus be able to monitor an attorney’s activity.

A donor can revoke an EPA

• when the donor is mentally capable; or
• if the donor recovers from their mentally incapacity, makes an application to the Court for the revocation and the Court makes an order confirming the revocation.  
• An EPA can be revoked automatically
  • on the bankruptcy or death of the attorney(s);
  • on the bankruptcy or death of the donor;  
  • if the Court finds an EPA defective, or when it finds the attorney acting in breach of his/her duties, it may make an order to revoke an EPA or to remove the attorney; or
  • on the appointment of a committee under Part II of the Mental Health Ordinance (Cap.136 of the Laws of Hong Kong)

Prescribed form

• For an EPA to have legal effect, it must be made out in the “prescribed form”. “Prescribed form” 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)
• Form 1 is to be used when the donor intends to appoint only one attorney;
• Form 2 is to be used when the donor intends to appoint more than one attorney.

A. The donor

• The donor must:  
  • specify what the attorney’s authority is in dealing with the donor’s particular property or financial affairs; 
  • sign the EPA before a registered medical practitioner and a solicitor
• The donor may:  
  • appoint more than one attorney so that the attorneys may assist or monitor each other.  The donor must choose whether their attorneys are to act “jointly” or “jointly and severally”;
  • place any restrictions on the authority the donor gives to their attorney(s) in the EPA
  • specify a date for an EPA’s commencement or an event to trigger its commencement; 
  • nominate person(s) to be notified by the attorney before applying to the Registrar of the High Court for the registration of the EPA. The named person(s) can be:
    • the donor himself/herself;
    • any attorneys not joining in the application; or
    • up to two other persons
• The donor must not:
  • give their attorney a general authority over the donor’s property and financial affairs;
  • leave the paragraphs of the prescribed form blank where they must be filled in or deleted

**otherwise the EPA will not be valid.

B. The attorney(s) 

• The attorney(s) must: 
  • have attained the age of 18 years;
  • not be bankrupt; and
  • be mentally capable. 

A trust corporation can be the attorney.

• The attorney(s) cannot be:
  • the registered medical practitioner or the solicitor witnessing the EPA;
  • the spouse of the registered medical practitioner or the solicitor; or
  • a person related by blood or marriage to the registered medical practitioner or the solicitor

 ** The attorney(s) must sign the EPA in the presence of a witness(es).

C. The witness(es) 

• The witness(es) must not be:
  • the donor; or 
  • other attorney(s).

• To execute an EPA, a donor must sign the EPA before a registered medical practitioner and a solicitor.
•   The donor may sign the EPA
  • in the presence of both the solicitor and the registered medical practitioner at the same time; or 
  • 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 registered medical practitioner must: verify and satisfy that the donor is mentally capable.
• A “registered medical practitioner” does not necessarily have to be a specialist such as a psychiatrist or neurologist.
• The solicitor must:
  • certify that the donor appears to be mentally capable  

*If the donor finds a solicitor merely to witness the execution of the EPA, this solicitor does not have the duty to give legal advice regarding the EPA.

• The registered medical practitioner or the solicitor witnessing the EPA cannot be
  • the attorney(s);
  • the spouses of the attorney(s);  
  • any person related by blood or marriage to the donor; or  
  • any person related by blood or marriage to the attorney(s)

*If the donor is physically incapable of signing, he/she may instruct other person to sign the EPA on his/her behalf. That person must sign the EPA under the direction and in the presence of the donor, also in the presence of a registered medical practitioner and a solicitor

• The person signing on the donor’s behalf cannot be
  • the attorney(s);    
  • the spouses of the attorney(s);   
  • the registered medical practitioner or the solicitor witnessing the EPA; or
  • the spouse of the registered medical practitioner or the solicitor.

Department of Justice of the Government of the Hong Kong Special Administrative Region: Enduring Powers of Attorney: General Information