In the latest population projections 2017 - 2066 by the Census and Statistics Department of the Government, the proportion of population aged 65 or above is projected to increase from 17 percent in 2016 to 25 percent in 2026 and further to 31 percent in 2036. The society as a whole must be well prepared for an increasingly sizeable aging population.
With the support of our members, the Law Society actively engages in community work and our target beneficiaries cover all ages from children to the elderly. To align our efforts with the demographic trend, the Law Society is proportionately taking up more initiatives relating to the elderly.
In collaboration with NGOs like The Elderly Resources Centre of Hong Kong Housing Society, The Hong Kong Society for the Aged and Yan Oi Tong, the Law Society organises community talks on issues relevant to the aging population and their caretakers. Up to May 2019, the Law Society has scheduled 13 community talks on topics like Enduring Powers of Attorney (“EPA”), Wills and Advance Directives.
EPA plays a useful role in assisting the aging population to plan and prepare for their future. An EPA allows a person who is still mentally capable to appoint one or more attorney(s) to take care of his financial matters in the event that he subsequently becomes mentally incapacitated. Unlike a normal power of attorney that will cease to have effect as soon as its donor becomes mentally incapacitated, the EPA will continue to be in effect.
The EPA regime was enacted in 1997 but the take up rate had been very low. The public was either not aware of the regime or found the statutory requirement to have the form signed concurrently in the presence of a medical practitioner and a solicitor too cumbersome. The Law Society had raised these concerns with the Administration in as early as 2003 advocating for a simpler legal procedure for the execution of EPAs and wider publicity to make the EPA regime known to the public. Up to 2003, only three EPAs were registered in Hong Kong.
In response to the concerns raised by the Law Society, the procedure was finally relaxed in 2012 to allow a donor and a solicitor to sign an EPA within 28 days after it has been signed by a registered medical practitioner. In its submissions in 2011, the Law Society had expressed its views that the relaxation was inadequate as the procedure could be further streamlined by abolishing the requirement to have the EPA signed before a medical practitioner, in addition to a solicitor. The take up of EPAs therefore still remained low compared with the take up rates in other jurisdictions, though since 2013, the number of EPA registrations has increased.
The existing EPA scheme allows a person to appoint attorneys to oversee his property and financial affairs only. The Department of Justice (“DOJ”) has launched a public consultation to seek views on the proposed legislation regarding the Continuing Powers of Attorney (“CPA”) Bill that extends the scope of EPA to cover decisions not only on a person’s property and financial affairs but his personal care as well. The Law Society has already made its comments on the detailed provisions in the Bill to DOJ.
Before introducing a new CPA regime, the Administration should perhaps reflect on the reasons why EPAs have not been widely adopted despite the benefits they offer. The EPA regime is not only beneficial to the donor but also to his family and to society as a whole. To the donor, the mechanism enables him to choose in advance in a cost effective manner who he wants to take care of his affairs in future and creates a comforting sense of security and certainty. His family will not have to go through time consuming court proceedings to appoint a person to look after his affairs if the need indeed arises where there is no EPA in place. Court resources in handling these private administrative matters for individuals will also be effectively saved.
In view of the aging population, much more should be done by the Administration to promote the EPA regime (or the future CPA regime) to the public. The Law Society will continue to play our part and assist in educating the public on the relevant legal aspects.