Consultation on the Continuing Powers of Attorney Bill

In 2011, The Law Reform Commission of Hong Kong published a report on “Enduring Powers of Attorney: Personal Care” (“LRC Report”). The report recommended extending the scope of an enduring power of attorney to cover not only decisions on a donor’s property and financial affairs, but also decisions on a donor’s personal care.

The Department of Justice (“DOJ”) convened an inter-departmental working group to consider the LRC report and, in December 2017, released a consultation paper on the Continuing Powers of Attorney (“CPA”) Bill. Following the LRC Report, the DOJ proposes to enact a new CPA Ordinance to replace the existing enduring power of attorney scheme. The new CPA Ordinance allows a person (donor) who is not mentally incapable to confer on another person (attorney) the authority to act for the donor’s financial matters, as well as his/her personal care matters.

The Law Society has made a written submission to respond to the above consultation. Among other things, it highlights the following matters for a closer review by the DOJ, i.e. (i) the potential conflict for an attorney to look after both the personal care and the financial affairs of a donor; (ii) the protection that can possibly be offered to a donor who has made a CPA due to fraud or undue pressure; and (iii) the number of attorneys to be appointed to avoid deadlocks.

The Law Society has also addressed the DOJ’s consultation questions on the functions and power of the Guardianship Board; it rendered specific comments on various clauses of the CPA Bill.

The above consultation was reviewed by Council with the assistance from the Working Party on Enduring Powers of Attorney, the Property Committee and the Probate Committee.

The full submission is available at:
http://www.hklawsoc.org.hk/pub_e/news/submissions/20180425a.pdf

Jurisdictions: