LCQ13: Enduring powers of attorney
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Question:
An enduring power of attorney (EPA) allows a member of the public to authorise another person to take care of his/her financial matters in the event that he/she becomes mentally incapacitated. An EPA must be signed before a medical practitioner and a solicitor and registered in the High Court to have legal effect. There are views pointing out that in processing the registration, the Judiciary's requirement for the applicant to submit a copy of the practising certificates or other acceptable documentary proof (proof of practice) of both the solicitor and the registered medical practitioner who witnessed the execution of the instrument is difficult to implement in practice. In this connection, will the Government inform this Council:
(1) given that submission of proof of practice is not a legal requirement for registration, whether the Government knows the commencement date and rationale for implementing the relevant requirement, and of the types of other acceptable documentary proof of practice;
(2) whether it has measures in place to assist members of the public in finding medical practitioners who are willing to witness the execution of EPAs and matching such medical practitioners with them; if so, of the details; and
(3) given that for EPAs signed in the earlier years that have not been registered, the donors may not have kept the proof of practice of the witnessing solicitors and the medical practitioners at the time, whether the Government knows if the Judiciary has measures in place to assist in the registration of such EPAs; if so, of the details; if not, of any flexible proposal to deal with such EPAs?
Reply:
President,
Having consulted the Department of Justice and the Judiciary, our reply to various parts of the question is as follows:
(1) and (3) According to the Enduring Powers of Attorney Ordinance (Cap. 501), an enduring power of attorney (EPA) is a legal instrument which allows its donor, while he/she is still mentally capable to appoint attorney(s) to take care of the donor's property and financial affairs in the event that he/she becomes mentally incapacitated. Section 5 of the Ordinance stipulates that a donor must sign the EPA before a registered medical practitioner and a solicitor.
Pursuant to section 4 of the Ordinance, if the attorney has reason to believe that the donor is or is becoming mentally incapable, the attorney must, as soon as practicable, make an application to the Registrar of the High Court for registration of the EPA. Section 9 of the Ordinance and the Enduring Powers of Attorney (Registration) Rules (Cap. 4E) stipulate that, an applicant should submit the following documents when applying for registration:
(a) A covering letter, stating the names and addresses of the donor and the attorney or, where applicable, each of the attorneys; and
(b) The original and a certified copy of the EPA.
In addition, the Registrar requires applicant(s) to submit a copy of the practicing certificates (or any documentary proof acceptable by the Registrar) of both the registered medical practitioner and the solicitor who witnessed the execution of the EPA by the donor. According to records of the Judiciary, the above-mentioned requirement has been in place since 2002.
If an applicant is unable to submit a copy of the registered medical practitioner's practicing certificate valid at the time he/she witnessed the execution of the EPA, the Registrar also accepts a letter of certification issued by the Medical Council of Hong Kong to certify that the registered medical practitioner was holding a valid practicing certificate at the time of witnessing.
If a solicitor is unable to provide a copy of the practicing certificate valid at the time he/she witnessed the execution of the EPA, he/she may consider applying to the Law Society of Hong Kong for a replacement. The Registrar also accepts copy of practicing certificate reissued by the Law Society of Hong Kong.
The Registrar would make appropriate directions having regard to the merits and circumstances of individual applications.
(2) In accordance with section 5 of the Ordinance, the donor of an EPA must sign the EPA before a registered medical practitioner and a solicitor. The registered medical practitioner and the solicitor witnessing the signing of the EPA must each be a person other than the person being appointed as the attorney, or the spouse of the attorney or a person related by blood or marriage to the donor or the attorney.
The registered medical practitioner must certify that he/she is satisfied that the donor is mentally capable at the time of signing the EPA. Such certification may be given by any doctor registered under the Medical Registration Ordinance (Cap. 161), and there is no requirement that the doctor must be a specialist, such as a psychiatrist or neurologist. The solicitor must also certify that the donor appears to be mentally capable. The Government does not provide matching service for this purpose.
Ends/Wednesday, April 29, 2026
Issued at HKT 11:05
Issued at HKT 11:05
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