Enduring Powers of Attorney: Personal Care
(HKLRC Consultation Paper)
On 16 July 2009, the Law Reform Commission published a consultation paper seeking the public's views on proposals to extend the scope of an enduring power of attorney (EPA) to include decisions as to the donor's personal care. At present, an EPA can apply only to decisions about the donor's property and financial affairs and cannot be used to delegate decisions about the donor's personal care.
The paper explains that a power of attorney is a legal instrument that is used to delegate legal authority to another person. By executing a power of attorney, the donor of the power gives legal authority to another person (the attorney) to make legal decisions on his behalf.
A conventional power of attorney can only be made by a person who is mentally competent, and any such power of attorney will lapse if the donor subsequently becomes mentally incompetent. It may be in just such circumstances, however, that the donor of the power would want his attorney to be able to act for him. To meet that difficulty, the Enduring Powers of Attorney Ordinance (Cap 501) allows a special type of power of attorney, called an "enduring power of attorney" to be executed while the donor of the power is mentally capable but which continues to have effect after the donor becomes incapable. At present, an EPA can apply only to decisions about the donor's property and financial affairs and cannot be used to delegate decisions about what may be termed the donor's personal care.
In a number of other jurisdictions the scope of an EPA is much less restricted and a donor can delegate to his EPA attorney personal care decisions on matters such as where he should live (and with whom), his daily dress and diet and his day-to-day health care. The Commission proposes that a similar approach should be adopted in Hong Kong and that the scope of an EPA should be extended to include decisions as to the donor's personal care. "Personal care" for these purposes should include everyday decisions as to the donor's health care, but not decisions involving the giving or refusing of life-sustaining treatment.
The Commission recommends that the personal care decisions which an attorney may make under an EPA should include:
(a) where the donor lives;
(b) who the donor lives with;
(c) whether the donor works and, if he does so, where and how the donor works;
(d) what education or training the donor gets;
(e) whether the donor applies for a licence or permit;
(f) the donor's daily dress and diet;
(g) whether to consent to a forensic examination of the donor;
(h) whether the donor will go on holiday and where; and
(i) legal matters relating to the donor's personal care.
At the same time, the Commission proposes that the following decisions should be statutorily excluded from the scope of an EPA:
(a) making, varying or revoking the donor's will
(b) making an EPA for the donor
(c) exercising the donor's right to vote in an election or referendum
(d) consenting to the adoption of a child of the donor who is under 18
(e) consenting to the marriage of the donor
(f) removal of non-regenerative tissue from the donor while alive for donation to someone else
(g) sterilisation of the donor if the donor is, or is reasonably likely to be, fertile.
The Commission recommends that there should be a statutory duty imposed on an EPA attorney to act in the donor's best interests and that powers of supervision of an EPA attorney should be given to the court and to the Guardianship Board.
To avoid the difficulties which can arise through non-recognition of an EPA made overseas, the Commission recommends that an EPA made in a jurisdiction other than Hong Kong should be recognised in Hong Kong if:
(a) it complies with the Hong Kong execution requirements (though witnessed by a solicitor/doctor registered in the other jurisdiction, rather than Hong Kong); or
(b) it complies with the EPA requirements of that jurisdiction.
The consultation paper contains a list of questions on which the public's views are sought but the Commission would welcome views generally on the issues raised in the paper. The consultation period will last until 30 September 2009.
|Press Release (PDF) (MS Word)|
|Executive Summary (PDF) (MS Word)|
|Consultation Paper (PDF) (MS Word)|