- Entitlement and access to public health care services
- Medical treatment: consent and withdrawal
- Advance Directives
- Taking care of a mentally incapacitated person: Guardianship or Committee
- Enduring Power of Attorney
- What is an Enduring Power of Attorney?
- Key advantages of an EPA
- The attorney
- Duties and liabilities of the attorney(s)
- The attorney(s)' authorities and restrictions
- How to make an EPA - using the prescribed form
- How to make an EPA - signed by the donor
- How to make an EPA - certificate by a registered medical practitioner and a solicitor
- How to make an EPA - arrangements for donor who is physically incapable
- How to make an EPA - signed by the attorney(s)
- Commencement of the EPA
- Registration of the EPA
- Notification of named persons
- Revocation
- Hypothetical cases
- Questions and answers
- Guide to prescribed forms of the Enduring Power of Attorney and downloading the forms
- Elder abuse
- Medical negligence
- Medical insurance
- Care by residential care homes for elderly persons
Enduring Power of Attorney
Duties and liabilities of the attorney(s)
Section 12(2) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) expresses in clear and plain terms that an attorney under an EPA has the duties:
“(a) to exercise his powers honestly and with due diligence;
(b) to keep proper accounts and records;
(c) not to enter into any transaction where a conflict of interest would arise with the donor; and
(d) not to mix the property of the donor with other property.”
The attorney is expected to administer the donor’s assets only for the donor’s benefit. The attorney definitely should not profit from the administration of the donor’s assets, and must avoid situation where his/her interest will conflict with the donor’s.
Section 11(1) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) provides as follows:
“The court may on the application of an interested party-
(a) require the attorney under an enduring power to produce records and accounts and make an order for their auditing;
(b) revoke an enduring power or vary an enduring power; or
(c) if satisfied that the interests of the donor of an enduring power so require it, remove the attorney.”
An attorney’s acts will therefore be under the monitor of an interested party. While the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) does not define who can be qualified as an “interested party”, it is believed that the Court will not hesitate to allow a wide interpretation in cases where a mentally incapacitated person’s interest is involved. Generally speaking, a close relative of the donor is usually defined as an “interested party”.
