Three Instruments of Peace: Understanding Enduring Powers of Attorney

What is an Enduring Power of Attorney (EPA)?

An Enduring Power of Attorney (EPA) is a legally binding document that allows a person (the “donor”), while still mentally capable, to appoint one or more trusted individuals (the “attorneys”) to handle their financial affairs. Unlike a general power of attorney, an EPA remains valid even if the donor later loses mental capacity due to illness, accident, or other reasons.

Benefits of Making an EPA

• Autonomy: The donor can decide in advance who will manage their financial matters if they lose mental capacity.
• Efficiency and cost-saving: Avoids the complex and expensive court procedures required to appoint someone later.
• Reduced family burden: Prevents family members from facing major difficulties and stress when handling financial and asset matters.

Legal Format and Requirements

According to Section 3(1)(a) of the Enduring Powers of Attorney Ordinance (Cap. 501), an EPA must use the prescribed forms set out in the Enduring Powers of Attorney (Prescribed Form) Regulation (Cap. 501A) to be legally valid:

• Form 1: Appointment of a single attorney
• Form 2: Appointment of more than one attorney

Signing Requirements

1. The donor must sign in the presence of a registered medical practitioner and a solicitor, to ensure they understand the legal consequences and have mental capacity.
   • Ideally, the donor, doctor, and solicitor should all be present at the same time.
   • If this is not possible, the donor may first sign before the doctor, and then sign before the solicitor within 28 days.
2. The attorney(s) must sign before a witness to indicate acceptance of the appointment, and the witness must also sign the document.

Commencement of the EPA

The donor may specify when the EPA takes effect, for example:

• On a specific date (e.g., their 80th birthday)
• Upon the occurrence of a specific event (e.g., hospitalisation for more than one week)

If no special provision is made, the EPA takes effect on the date the donor signs it before the solicitor.
If the donor does not wish the attorney(s) to act while they still have mental capacity, the EPA can expressly state that the attorney(s) may only act after the donor has lost capacity.

Registration Procedure

•  Once the EPA takes effect, the attorney(s) may immediately handle the donor’s financial affairs.
• When the donor loses mental capacity, the attorney(s) must apply to the High Court to register the EPA in order to continue acting.
• The donor or attorney(s) may also apply for registration in advance, while the donor still has mental capacity, so that the EPA can take effect immediately when needed.

Powers and Duties of Attorneys

• The scope of authority must be clearly stated in the EPA, including the matters, assets, and financial affairs the attorney(s) may handle.
• Attorneys must not act against the donor’s wishes.
• Under Section 12(1) of the Enduring Powers of Attorney Ordinance, attorneys’ duties are fiduciary in nature. They must:
  • Act in the donor’s best interests;
  • Not use the donor’s assets for personal gain; and
  • Avoid conflicts of interest with the donor.

An Enduring Power of Attorney is an important legal tool for safeguarding personal financial arrangements. It ensures that even if a person later loses mental capacity, trusted individuals can lawfully manage their assets, avoiding unnecessary legal disputes and financial loss.

Learn More

For further information, you may visit the Community Legal Information Centre’s “Enduring Powers of Attorney” section, or watch the related animated video.