Nature and Functions of an Enduring Power of Attorney

According to the Enduring Powers of Attorney Ordinance (Cap. 501 of the Laws of Hong Kong), an enduring power of attorney (EPA) is a legal instrument which allows its donor (i.e. the person who wishes to give his/her power of attorney to someone), while he/she is still mentally capable, to appoint attorney(s) to take care of the donor’s financial matters in the event that he/she subsequently becomes mentally incapacitated.

While a general power of attorney will cease to be effective if the donor becomes mentally incapacitated, an EPA will “endure” the donor’s mental incapacity and give the attorney(s) the power to continue to take care of the donor’s financial affairs despite such incapacity. In light of a growing elderly population and an increasing number of cases of dementia in Hong Kong, the EPA is of special significance.

Law Reform Commission Report on EPA

The Enduring Powers of Attorney Ordinance was originally enacted in 1997. The Ordinance provides that a donor may confer power on an attorney to act in relation to his property and financial affairs. The Law Reform Commission of Hong Kong (LRC) published a Report on Enduring Powers of Attorney in 2008 which identified the following key advantages of an EPA:

• it 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;
• 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; and
• it eases the difficulties and distress that may otherwise be suffered by the donor’s family in managing the donor’s affairs.

However, between 1997 and 2007, only a handful of EPAs were registered in Hong Kong. This contrasts sharply with the position in other jurisdictions, where EPAs are widely used. The LRC considered that the low take-up rate in Hong Kong was caused at least in part by the cumbersome requirement in the original Ordinance that an EPA be executed in the simultaneous presence of a medical practitioner and a solicitor. It was against this background that the Enduring Powers of Attorney (Amendment) Ordinance 2011 was enacted (and came into operation on 3 July 2012) to give effect to the LRC’s recommendation to relax the requirement so as to allow a donor and a solicitor to sign an EPA within 28 days after it has been signed by a registered medical practitioner. The enactment also gives effect to the LRC’s recommendation to adopt a new statutory form and associated explanatory information drafted in plain language and in a more user-friendly format.

Detailed information on EPAs

For further details, you may refer to the EPA section of the Community Legal Information Centre (CLIC) website of The University of Hong Kong at this link, which was prepared by the CLIC under the sponsorship of the Department of Justice. Topics covered include:

1. What is an Enduring Power of Attorney?
2. The essence of an Enduring Power of Attorney and what it can achieve
3. Requirements and procedures for making an Enduring Power of Attorney
4. When will an Enduring Power of Attorney take effect?
5. Things to consider when choosing the prescribed form and spelling out the terms of an Enduring Power of Attorney
6. What will happen if a person fails to execute an Enduring Power of Attorney before he/she becomes mentally incapacitated?
7. What will happen when the donor of an Enduring Power of Attorney eventually becomes mentally incapacitated?
8. Guide to prescribed forms of the Enduring Power of Attorney and downloading the forms

There is also an information leaflet which contains a summary of matters in relation to the execution of an EPA.

Note: The materials provided in the CLIC website and the information leaflet are for information only. Please consult a practising solicitor prior to executing an EPA.

As part of the Government’s publicity measures to promote the use of EPAs with the coming into operation of the Enduring Powers of Attorney (Amendment) Ordinance 2011, representatives of the Department of Justice were interviewed by the Commercial Radio. The interview, covering commonly asked questions and answers on practical details regarding how an EPA operates, was broadcast in the programme Senior Bazaar on Commercial Radio One on 8 July 2012. You may refer to the transcript of the radio interview at this link.

An Announcement in the Public Interest (API) for the promotion of the use of EPAs was also broadcast on radio between January 2013 and January 2014. Please click here for the API.

* The policy purview of the Enduring Powers of Attorney Ordinance (Cap. 501) and related matters have since 2022 been transferred to the Labour and Welfare Bureau.