- 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
How to make an EPA - certificate by a registered medical practitioner and a solicitor
To order to safeguard against the remote possibility that the registered medical practitioner or the solicitor may exercise undue influence on the donor, section 5(2)(aa) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) prescribes that the registered medical practitioner or the solicitor witnessing the EPA cannot be:
- the attorney;
- the spouse of the attorney;
- any person related by blood or marriage to the donor; or
- any person related by blood or marriage to the attorney.
Certificate by a registered medical practitioner
Section 5(2)(e) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) specifies that the registered medical practitioner has to be “satisfied that the donor was mentally capable” when signing the EPA. This certification by a registered medical practitioner would also serve to minimize the chance of future challenges to an EPA on the grounds that the donor was already mental incapacitated at the time of executing the EPA.
One should note that this certification is to be given by a “registered medical practitioner”, but that medical practitioner does not necessarily have to be a specialist such as a psychiatrist or neurologist.
Certificate by a solicitor
Section 5(2)(d) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) provides that the solicitor has to certify that “the donor appeared to be mentally capable”.
“Solicitor”, according to section 3 of the Interpretation and General Clauses Ordinance (Cap.1 of the Laws of Hong Kong), means “a person admitted before the Court of First Instance to practise as a solicitor”. Hence, as only a solicitor admitted (allowed to practice)in Hong Kong fits this criterion; the donor cannot sign the EPA before a barrister or a solicitor from another country.
If the donor finds a solicitor merely to witness the execution of the EPA, this solicitor does not have the duty to give legal advice regarding the EPA. Given that the legal consequences of an EPA can be very significant, it is suggested that a donor should engage a solicitor from the moment that he/she first ponders upon the idea of making an EPA, so that the solicitor can give proper legal guidance and advice throughout the entire process.
