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The Law Reform Commission today (April 30) published a consultation paper seeking the public's views on proposals to simplify the requirements for executing an enduring power of attorney.
A power of attorney was a legal instrument used to delegate legal authority to another. By executing a power of attorney, the donor of the power gave legal authority to another person (the attorney) to make property, financial and other legal decisions on his behalf, a spokesman for the Law Reform Commission said.
A conventional power of attorney can only be made by a person who is mentally competent, and any such power of attorney will lapse if the donor subsequently becomes mentally incompetent. It may be in just such circumstances, however, that the donor of the power would want his attorney to be able to act for him. To meet that difficulty, the Enduring Powers of Attorney Ordinance allows a special type of power of attorney, an "enduring power of attorney", to be executed while the donor of the power is mentally capable but which continues to have effect after the donor becomes incapable. An enduring power of attorney can apply only to decisions about the donor's property and financial affairs and cannot be used to delegate decisions about the donor's health care.
The spokesman said there were no requirements that a conventional power of attorney should be witnessed by a solicitor or a doctor, or, indeed, by anyone at all. In contrast, section 5(2)(a) of the EPA Ordinance requires that an enduring power of attorney must be signed in the presence of a solicitor and a medical practitioner. Since the Ordinance came into effect on July 1, 1997, only a handful of enduring powers of attorney have been registered. This contrasts with the position in other jurisdictions and it has been suggested that the low take-up rate in Hong Kong may be caused at least in part by the cumbersome requirement that an enduring power of attorney be executed in the simultaneous presence of a medical practitioner and a solicitor, the spokesman said.
The spokesman said the consultation paper presented two options for change. The first was to remove the requirement for a medical witness altogether, and the second was to retain the requirement, but to allow the doctor and the solicitor to sign the enduring power of attorney at different times.
In addition, the consultation paper seeks views as to whether consideration should be given to extending the possible scope of enduring powers of attorney to include decisions about the donor's personal care, and whether the existing statutory form of enduring power of attorney should be simplified. The consultation paper contains a suggested draft of a simplified form.
The commission invites comments on the specific options and questions set out in the consultation paper, but would welcome any views generally on the present requirements for executing an enduring power of attorney.
The consultation period will last until June 30.
Copies of the consultation paper are available on request from the Secretariat of the Law Reform Commission at 20/F Harcourt House, 39 Gloucester Road, Wan Chai, Hong Kong. The consultation paper can also be accessed on the Commission's website at www.hkreform.gov.hk.
Ends/Monday, April 30, 2007
Issued at HKT 16:01
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