Enduring Power of Attorney

Registration of the EPA

To further safeguard a donor’s interest, the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) prescribes:

  • under section 4(2): “If the attorney has reason to believe that the donor is or is becoming mentally incapable he must, as soon as practicable, apply under section 9 for registration of the instrument creating the power.” 
  • under section 4(3): “In the event of the subsequent mental incapacity of the donor, the attorney shall not do anything under the authority of the power unless or until it is registered.

An attorney would therefore be effectively barred from dealing with the donor’s assets before the registration process is completed. The registration system is administered by the Registrar of the High Court of Hong Kong. The system will ensure that a register of every EPA in force will be kept with the Court, which in turn will allow any person to inspect any EPA and thus be able to monitor an attorney’s activity.

One should also note: while the law provides that an attorney must apply for the registration of the EPA upon the donor becoming mentally incapable, it does not mean that the attorney or the donor cannot register the EPA before the onset of the donor’s mental incapacity. In other words, the donor can apply for the registration of the EPA soon after executing an EPA, that is, while he/she is still mentally sound. This would have the benefit of ensuring the registration when the donor is still in control of the matter. Besides, the attorney can start administering the donor’s assets soon after the donor’s mental incapacity without having to apply for registration and to wait for its completion.