ENDURING POWERS OF ATTORNEY Alexandra Lo, Dak Wai Faculty of
Law The Chinese University of Hong Kong CADENZA SYMPOSIUM 2008
CADENZA SYMPOSIUM 2008 Successful Ageing October 11 12, 2008
Slide 2
EPOA Oct 2008 ADWL2 INTRODUCTION WHY EPA ? PRESENT LAW IN HONG
KONG PROPOSED LAW REFORM OVERSEAS EXPERIENCE SUMMARY OF
ANALYSIS
Slide 3
EPOA Oct 2008 ADWL3 WHY EPA ? What is EPA ? Enduring Power of
Attorney Lasting Power of Attorney Continuing Power of Attorney .
Its effect will start / continue immediately or when the donor (P)
loses mental capacity. Its effect will cease when P dies.
Slide 4
EPOA Oct 2008 ADWL4 WHY EPA ? Consent Who can make decisions on
behalf of competent patients ? Who can make decisions on behalf of
incompetent patients ? Relatives ? Doctors ? Lawyers ? No one has
the power to consent on behalf of an incompetent patient. Benefits
of an EPA
Slide 5
EPOA Oct 2008 ADWL5 WHY EPA ? EPA Gives power of
decision-making to a specific person, the donee (attorney) (D)
Greater flexibility Less certainty in the determination by P
Currently relates to property and financial affairs Advanced
Directive (AD) P sets out own decision in advance Less flexibility
to adapt to actual circumstances Greater certainty in the
determination by P Currently proposed to relate to medical
decisions
Slide 6
EPOA Oct 2008 ADWL6 PRESENT LAW IN HK Enduring Powers of
Attorney Ordinance (Cap 501) , enacted in 1997, Section 4 Under an
enduring power, the power is not revoked by reason of any
subsequent mental incapacity of the donor. Attorney must seek
registration of the EPA when he has reason to believe that the
donor is or is becoming mentally incapable Attorney cannot act
until the EPA is registered under section 9 but D has interim
powers..
Slide 7
EPOA Oct 2008 ADWL7 PRESENT LAW IN HK Enduring Powers of
Attorney Ordinance, Section 4 contd Where Section 5 of Cap 31
applies: attorney does not have to bear liability, transactions
with 3 party may be valid While pending registration, the attorney
has power: (a) to maintain the donor or prevent loss to his estate;
(b) to maintain himself or other persons in so far as section
8(3)(b) permits him to do so
Slide 8
EPOA Oct 2008 ADWL8 PRESENT LAW IN HK Enduring Powers of
Attorney Ordinance (Cap 501) Section 5(2)(a): the donor must sign
the instrument before a solicitor and a registered medical
practitioner who must both be present at the same time and each of
whom must be a person other than the person being appointed as the
attorney, the spouse of such person or a person related by blood or
marriage to the donor or the attorney; Statutory form.
Slide 9
EPOA Oct 2008 ADWL9 PRESENT LAW IN HK Enduring Powers of
Attorney Ordinance (Cap 501) Section 5(2)(d) the solicitor must
certify- (i) that the donor attended before him at the time of the
execution of the enduring power; (ii) that the donor appeared to be
mentally capable (specifying in the certification that the donor
appeared to be mentally capable in terms of section 2); and (iii)
that the instrument was signed in his presence and, where it is
signed by the donor, that the donor acknowledged that he was
signing it voluntarily and, where it is signed on the donor's
behalf, that it was so signed under the direction of the donor
Slide 10
EPOA Oct 2008 ADWL10 PRESENT LAW IN HK Enduring Powers of
Attorney Ordinance (Cap 501) Section 5(2)(e) the medical
practitioner must certify- (i) that the donor attended before him
at the time of the execution of the enduring power; (ii) that he
satisfied himself that the donor was mentally capable (specifying
in the certification that he satisfied himself that the donor was
mentally capable in terms of section 2); (iii) that the instrument
was signed in his presence and, where it is signed by the donor,
that the donor acknowledged that he was signing it voluntarily and,
where it is signed on the donor's behalf, that it was so signed
under the direction of the donor.
Slide 11
EPOA Oct 2008 ADWL11 PRESENT LAW IN HK Section 1A of the Powers
of Attorney Ordinance (Cap 31) A person shall be regarded as being
mentally incapable or suffering from mental incapacity for any
purpose relating to a power of attorney for which the fact that a
person is mentally incapable or is suffering from mental incapacity
is relevant, if- (a) he is suffering from mental disorder or mental
handicap and- (i) is unable to understand the effect of the power
of attorney; or (ii) is unable by reason of his mental disorder or
mental handicap to make a decision to grant a power of attorney; or
(b) he is unable to communicate to any other person who has made a
reasonable effort to understand him, any intention or wish to grant
a power of attorney.
Slide 12
EPOA Oct 2008 ADWL12 PRESENT LAW IN HK Formality of executing a
PA: Section 2 of the Powers of Attorney Ordinance (Cap 31) (1) An
instrument creating a power of attorney shall be signed and sealed
by, or by direction and in the presence of, the donor of the power.
(2) Where such an instrument is signed and sealed by a person by
direction and in the presence of the donor of the power, two other
persons shall be present as witnesses and shall attest the
instrument. Statutory form.
Slide 13
EPOA Oct 2008 ADWL13 PRESENT LAW IN HK Formality of executing a
Will: Wills Ordinance (30), Section 5 Requirements for execution of
wills: it is in writing, and signed by the testator, or by some
other person in his presence and by his direction; it appears that
the testator intended by his signature to give effect to the will;
the signature is made or acknowledged by the testator in the
presence of 2 or more witnesses present at the same time
Slide 14
EPOA Oct 2008 ADWL14 PRESENT LAW IN HK Enduring Powers of
Attorney Ordinance (Cap 501) Low take-up rate As of September 2006,
only 16 EPAs had been registered in HK in the 9 years since the
Ordinance was enacted. In contrast, 17,398 were registered in E
& W in 2005 alone. Law Reform Commission of HK Consultation
Paper on Enduring Powers of Attorney, April 2007 WHY ?
Slide 15
EPOA Oct 2008 ADWL15 PROPOSED LAW REFORM Law Reform Commission
of HK Consultation Paper on Enduring Powers of Attorney, April 2007
Terms of reference restricted to execution requirements (3.19)
Options for change: Remove the requirement for a medical witness
Retain the requirement, but allow the doctor and solicitor to
witness the EPA separately. Overseas Experience analysed.
Slide 16
EPOA Oct 2008 ADWL16 PROPOSED LAW REFORM Law Reform Commission
of HK Consultation Paper on Enduring Powers of Attorney, April 2007
Further views sought (3.19) Whether the powers delegated under an
EPA should be extended to include personal care of D Giving or
refusal of medical treatment not to be included in either AD or
EPOA regime (3.21).
Slide 17
EPOA Oct 2008 ADWL17 PROPOSED LAW REFORM 2007 Consultation
questions (3.30) ~ Yes or No ? Relax witnessing requirements for
execution? If yes Dispense with medical witness ? If no Sign at
same time? If no Maximum period of time gap allowed ? Greater
publicity should be given ? Clarify the statutory form ? If yes Do
you like Annex B ? Whether scope to extend to personal care ?
Slide 18
EPOA Oct 2008 ADWL18 PROPOSED LAW REFORM Law Reform Commission
of HK Report on Enduring Powers of Attorney, 26 March 2008
Respondents to the 2007 Consultation Paper listed in Annex A - 24
in total. 4 Main recommendations: Recommendation 1: Abolish need
for medical witness. Law Society encouraged to issue practice
directions to govern execution of EPAs, making clear that where a
solicitor has grounds for doubting the mental competence of his
client, an assessment of the clients mental capacity from a medical
practitioner must be obtained.
Slide 19
EPOA Oct 2008 ADWL19 PROPOSED LAW REFORM Law Reform Commission
of HK Report on Enduring Powers of Attorney, 26 March 2008
Recommendation 2: If Recommendation 1 not accepted, then relax the
requirement for medical witness and legal execution to be held
together, providing a maximum gap of 28 days. Recommendation 3: the
Government, in partnership with relevant professional bodies and
non- governmental organisations (NGOs), should take steps to
increase awareness and understanding of EPAs, including the use of
TV/radio, user- friendly pamphlets, online resources, etc.
Slide 20
EPOA Oct 2008 ADWL20 PROPOSED LAW REFORM Law Reform Commission
of HK Report on Enduring Powers of Attorney, 26 March 2008
Recommendation 3 (contd) Law Society should educate members through
courses. Publicity should include information about the duties of
an attorney, safeguards against abuse of power, and an explanation
that an attorney need not be a lawyer. A body should be identified
to plan, co-ordinate and lead public efforts.
Slide 21
EPOA Oct 2008 ADWL21 PROPOSED LAW REFORM Law Reform Commission
of HK Report on Enduring Powers of Attorney, 26 March 2008
Recommendation 4: the Schedule to the Enduring Powers of Attorney
(Prescribed Form) Regulation be replaced with a form and
explanatory notes along the lines of those set out at Annex C or D
to the report, if Recommendation 1 accepted.
Slide 22
EPOA Oct 2008 ADWL22 PROPOSED LAW REFORM 2008 Report reiterated
that the majority of those who responded to the question of
extending EPAs to personal care (other than the giving or refusing
of medical treatment) were in favour. Separate project Personal
care to include decisions about the donors personal care, such as,
for instance, where and with whom the donor lives and the donors
daily dress and diet. Difficult to make decisions on
property/finance without relating it to personal care of the donor
(P) ? LRC will consider whether the scope of EPAs in Hong Kong
should be extended and, if so, to what extent.
Slide 23
EPOA Oct 2008 ADWL23 New LRC Study, June 2008 Following the
publication in March 2008 of a report on the execution requirements
for enduring powers of attorney (EPAs), the Commission has been
asked to consider whether the scope of an EPA should be extended to
include decisions about the donors personal care Source:
http://www.hkreform.gov.hkhttp://www.hkreform.gov.hk
Slide 24
EPOA Oct 2008 ADWL24 PROPOSED LAW REFORM Law Reform Commission
of HK Report on Enduring Powers of Attorney, 26 March 2008
concluded: EPAs offer significant benefits for the donor, the
donors family and the community at large. It is in everyones
interests to ensure that they are used widely. (3.12) None of the
common law jurisdictions reviewedexcept Ireland requires an EPA to
be witnessed by a doctor and a solicitor (3.13)
Slide 25
EPOA Oct 2008 ADWL25 PROPOSED LAW REFORM Law Reform Commission
of HK Report on Enduring Powers of Attorney, 26 March 2008
concluded: We note the significant difficulties of executing an EPA
under the existing provisions as described to us by solicitors with
actual experience of the process. There is clearly a tension
between enhancing the convenience of EPA execution and the need to
ensure that donors are fully cognisant of the consequences of the
execution, but we believe that the latter concern can be adequately
met without retaining the existing requirement for a medical
witness in every case. (3.14)
Slide 26
EPOA Oct 2008 ADWL26 PROPOSED LAW REFORM What are the benefits
for the donor, the donors family and the community at large ? What
are the significant difficulties ? Where is the tension ? Are
safeguards adequate Consider some hypothetical cases. Mr. Chan Mr.
Lee Mrs. Wong
Slide 27
EPOA Oct 2008 ADWL27 OVERSEAS EXPERIENCE United Kingdom
Enduring Powers of Attorney Act 1985 Law Commission Mental
Incapacity Report No.231, 1995 Mental Capacity Act 2005
Slide 28
EPOA Oct 2008 ADWL28 OVERSEAS EXPERIENCE English Mental
Capacity Act 2005 Section 9 Lasting Powers of Attorney Scope:
personal welfare + specific matters property and affairs + specific
matters which includes authority to make such decisions in
circumstances where the donor (P) no longer has capacity. Effect:
The LPA is not created unless, inter alia, it is registered in
accordance with Schedule 1.
Slide 29
EPOA Oct 2008 ADWL29 OVERSEAS EXPERIENCE English Mental
Capacity Act 2005 Section 11(7) Ds authority extends to giving or
refusing consent to the carrying out or continuation of treatment
by a person providing healthcare for P But does not extend to
life-sustaining treatment, unless the instrument contains express
provision to that effect.
Slide 30
EPOA Oct 2008 ADWL30 OVERSEAS EXPERIENCE Whole Package Approach
English Mental Capacity Act 2005 Code of Practice for the Mental
Capacity Act, Lord Chancellor, April 2007. The Lasting Powers of
Attorney, Enduring Powers of Attorney and Public Guardian
Regulations, SI 2007 No. 1253, passed April, effective October
2007. Regulations 14 and 15. Practice Note of the Law Society of
England & Wales, Sept 2007. .
Slide 31
EPOA Oct 2008 ADWL31 OVERSEAS EXPERIENCE Powers of Attorney Act
1996, Ireland Scope includes property, business and financial
matters and personal care Signed by donor (P) and solicitor,
witnessed by a third party Doctor must sign additional form stating
that P has capacity Law Society recommends 30 day rule Notification
(mandatory to include spouse/relative and one other person) and
Registration requirement Objections may be raised against
registration More than 600 EPA signed between 1997 to 2006.
Slide 32
EPOA Oct 2008 ADWL32 OVERSEAS EXPERIENCE Protection of Personal
and Property Rights Act 1988, New Zealand, as amended in 1997. The
Act does not impose requirement for medical certification at the
time of execution if the EPA were to take effect immediately. But a
new section 97 requires medical certification at the point of
incapacity if the EPA does not take effect until incapacity.
(2.54)
EPOA Oct 2008 ADWL34 OVERSEAS EXPERIENCE Personal care matters
may include: Where donor (P) lives Who P lives with Whether P
works, and if so, where and how What education or training P gets
Whether P applies for licence or permit Ps daily dress and diet
Whether to consent to forensic examination Whether P will go on
holiday Legal matters related to personal care Powers of Attorney
Act 2006, ACT, Australia, Quoted in both 2007 Consultation and 2008
Report
Slide 35
EPOA Oct 2008 ADWL35 SUMMARY OF ANALYSIS LRC Report pointed the
way to relaxing EPA execution. Next step is to clarify the role of
the solicitor and the medical practitioner at different stages:
execution, onset of incapacity, etc. before considering R 1 or R 2.
Need to carefully assess the overseas contexts where medical
witness dispensed with, to contrast it with the HK regulatory
framework, to ensure no gaps in the safeguards that would permit P
to be taken advantage of or D to abuse any power given. Need to
clarify the relationships between the will / PA / EPA / AD and
trusts and their purposes
Slide 36
EPOA Oct 2008 ADWL36 SUMMARY OF ANALYSIS Legislative amendment
and drafting of Code of Practice for EPAs under the proposed new
regime appear inevitable. Exploration and tackling of other reasons
for the low take-up rate other than execution issues. The
importance of ensuring safeguards and engaging the views of
medical, nursing, clinical psych, social work and related
practitioners by the proposal to extend EPAs to Personal Care.
Slide 37
EPOA Oct 2008 ADWL37 SUMMARY OF ANALYSIS Focus of Public
Education on EPA: Understand the pros and cons Give effect to
intention of donors (P) Protection of vulnerable P How to safeguard
against misuse, abuse, undue influence and fraud checks and
balances Minimize future uncertainty and litigation Conducted in
the context of existing law Nothing to be afraid of, but Not a
blanket solution and not suitable for everyone
Slide 38
EPOA Oct 2008 ADWL38 SUMMARY OF ANALYSIS Submission:
Co-operation of the medical, legal and other care-giving
professions for the successful implementation of EPA is just as
important, if not more, in the proposed new regime. The professions
can influence the shape of the future EPA regime. Just what form
new EPAs will take remains to be seen.
Slide 39
EPOA Oct 2008 ADWL39 REFERENCES 1.Law Reform Commission of HK
Report on Enduring Powers of Attorney, 26 March 2008. 2.Law Society
of HK submissions, 26 June 2007. 3.HK Bar Association Comments on
Consultation Paper on EPA, 31 January 2004, 15 June 2007 4.Law
Reform Commission of HK Consultation Paper on Enduring Powers of
Attorney, April 2007. 5.Law Reform Commission of HK Report on
Substitute Decision-Making and Advance Directives In Relation to
Medical Treatment, August 2006. 6.Hong Kong legislation obtained
from the BLIS website: http://www.legislation.gov.hk
http://www.legislation.gov.hk 7.English legislation obtained from
the OPSI website: http://www.opsi.gov.uk http://www.opsi.gov.uk
8.McHale and Fox, Health Care Law Text and Materials, 2 nd Ed.,
Thomson, 2007. 9.Herring, Medical Law and Ethics, OUP, 2006.
Slide 40
EPOA Oct 2008 ADWL40 ACKNOWLEDGEMENT The support of the Hong
Kong Jockey Club Charitable Trust and the CADENZA Project: A Jockey
Club Initiative for Seniors is gratefully acknowledged.
Slide 41
EPOA Oct 2008 ADWL41 Contact: Alexandra Lo, Dak Wai
Professional Consultant Faculty of Law, CUHK [email protected][email protected] Tel: 3163 4398