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					CADENZA SYMPOSIUM 2008 Successful Ageing October 11 – 12, 2008

ENDURING POWERS OF ATTORNEY
Alexandra Lo, Dak Wai Faculty of Law The Chinese University of Hong Kong

INTRODUCTION
     WHY EPA ? PRESENT LAW IN HONG KONG PROPOSED LAW REFORM OVERSEAS EXPERIENCE SUMMARY OF ANALYSIS

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WHY EPA ?
What is EPA ? Enduring Power of Attorney Lasting Power of Attorney Continuing Power of Attorney 持久授權書…. Its effect will start / continue immediately or when the donor (P) loses mental capacity. Its effect will cease when P dies.
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WHY EPA ?
Consent

Who can make decisions on behalf of competent patients ?
Who can make decisions on behalf of incompetent patients ? Relatives ? Doctors ? Lawyers ? No one has the power to consent on behalf of an incompetent patient. Benefits of an EPA

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WHY EPA ?
EPA  Gives power of decision-making to a specific person, the donee (attorney) (D)  Greater flexibility  Less certainty in the determination by P  Currently relates to property and financial affairs Advanced Directive (AD)  P sets out own decision in advance  Less flexibility to adapt to actual circumstances  Greater certainty in the determination by P  Currently proposed to relate to medical decisions
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PRESENT LAW IN HK
Enduring Powers of Attorney Ordinance (Cap 501) 《持久授權書條例》, enacted in 1997, Section 4 Under an enduring power, the power is not revoked by reason of any subsequent mental incapacity of the donor. Attorney must seek registration of the EPA when he has reason to believe that the donor is or is becoming mentally incapable Attorney cannot act until the EPA is registered under section 9 …but D has interim powers…..

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PRESENT LAW IN HK
Enduring Powers of Attorney Ordinance, Section 4 cont’d Where Section 5 of Cap 31 applies: attorney does not have to bear liability, transactions with 3 party may be valid While pending registration, the attorney has power:

(a) to maintain the donor or prevent loss to his estate;
(b) to maintain himself or other persons in so far as section 8(3)(b) permits him to do so

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PRESENT LAW IN HK
Enduring Powers of Attorney Ordinance (Cap 501) Section 5(2)(a): “the donor must sign the instrument before a solicitor and a registered medical practitioner who must both be present at the same time and each of whom must be a person other than the person being appointed as the attorney, the spouse of such person or a person related by blood or marriage to the donor or the attorney;” Statutory form.
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PRESENT LAW IN HK
Enduring Powers of Attorney Ordinance (Cap 501) Section 5(2)(d) the solicitor must certify(i) that the donor attended before him at the time of the execution of the enduring power; (ii) that the donor appeared to be mentally capable (specifying in the certification that the donor appeared to be mentally capable in terms of section 2); and (iii) that the instrument was signed in his presence and, where it is signed by the donor, that the donor acknowledged that he was signing it voluntarily and, where it is signed on the donor's behalf, that it was so signed under the direction of the donor
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PRESENT LAW IN HK
Enduring Powers of Attorney Ordinance (Cap 501)

Section 5(2)(e) the medical practitioner must certify(i) that the donor attended before him at the time of the execution of the enduring power; (ii) that he satisfied himself that the donor was mentally capable (specifying in the certification that he satisfied himself that the donor was mentally capable in terms of section 2); (iii) that the instrument was signed in his presence and, where it is signed by the donor, that the donor acknowledged that he was signing it voluntarily and, where it is signed on the donor's behalf, that it was so signed under the direction of the donor.
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PRESENT LAW IN HK
Section 1A of the Powers of Attorney Ordinance (Cap 31)

A person shall be regarded as being mentally incapable or suffering from mental incapacity for any purpose relating to a power of attorney for which the fact that a person is mentally incapable or is suffering from mental incapacity is relevant, if(a) he is suffering from mental disorder or mental handicap and(i) is unable to understand the effect of the power of attorney; or (ii) is unable by reason of his mental disorder or mental handicap to make a decision to grant a power of attorney; or (b) he is unable to communicate to any other person who has made a reasonable effort to understand him, any intention or wish to grant a power of attorney.
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PRESENT LAW IN HK
Formality of executing a PA: Section 2 of the Powers of Attorney Ordinance (Cap 31) (1) An instrument creating a power of attorney shall be signed and sealed by, or by direction and in the presence of, the donor of the power. (2) Where such an instrument is signed and sealed by a person by direction and in the presence of the donor of the power, two other persons shall be present as witnesses and shall attest the instrument. Statutory form.
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PRESENT LAW IN HK
Formality of executing a Will:

Wills Ordinance (30), Section 5
Requirements for execution of wills:  it is in writing, and signed by the testator, or by some other person in his presence and by his direction;  it appears that the testator intended by his signature to give effect to the will;  the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time

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PRESENT LAW IN HK
Enduring Powers of Attorney Ordinance (Cap 501)
Low take-up rate “As of September 2006, only 16 EPAs had been registered in HK in the 9 years since the Ordinance was enacted. In contrast, 17,398 were registered in E & W in 2005 alone.” Law Reform Commission of HK Consultation Paper on Enduring Powers of Attorney, April 2007

WHY ?
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PROPOSED LAW REFORM
Law Reform Commission of HK Consultation Paper on Enduring Powers of Attorney, April 2007 Terms of reference restricted to “execution requirements” (3.19)  

Options for change: Remove the requirement for a medical witness Retain the requirement, but allow the doctor and solicitor to witness the EPA separately.
Overseas Experience analysed.
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PROPOSED LAW REFORM
Law Reform Commission of HK Consultation Paper on Enduring Powers of Attorney, April 2007 Further views sought (3.19)




Whether the powers delegated under an EPA should be extended to include “personal care” of D Giving or refusal of medical treatment not to be included in either AD or EPOA regime (3.21).

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PROPOSED LAW REFORM
2007 Consultation questions (3.30) ~ Yes or No ?  Relax witnessing requirements for execution? If yes…  Dispense with medical witness ? If no…  Sign at same time? If no…  Maximum period of time gap allowed ?  Greater publicity should be given ?  Clarify the statutory form ? If yes…  Do you like Annex B ?  Whether scope to extend to personal care ?
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PROPOSED LAW REFORM
Law Reform Commission of HK Report on Enduring Powers of Attorney, 26 March 2008
Respondents to the 2007 Consultation Paper listed in Annex A - 24 in total. 4 Main recommendations:
Recommendation 1:
  Abolish need for medical witness. Law Society encouraged to issue practice directions to govern execution of EPAs, making clear that where a solicitor has grounds for doubting the mental competence of his client, an assessment of the client’s mental capacity from a medical practitioner must be obtained.

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PROPOSED LAW REFORM
Law Reform Commission of HK Report on Enduring Powers of Attorney, 26 March 2008

Recommendation 2:
If Recommendation 1 not accepted, then relax the requirement for medical witness and legal execution to be held together, providing a maximum gap of 28 days.

Recommendation 3:
 the Government, in partnership with relevant professional bodies and nongovernmental organisations (NGOs), should take steps to increase awareness and understanding of EPAs, including the use of TV/radio, userfriendly pamphlets, online resources, etc.
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PROPOSED LAW REFORM
Law Reform Commission of HK Report on Enduring Powers of Attorney, 26 March 2008 Recommendation 3 (cont’d)  Law Society should educate members through courses.

 Publicity should include information about the duties of an attorney, safeguards against abuse of power, and an explanation that an attorney need not be a lawyer.
 A body should be identified to plan, co-ordinate and lead public efforts.
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PROPOSED LAW REFORM
Law Reform Commission of HK Report on Enduring Powers of Attorney, 26 March 2008

Recommendation 4:

 the Schedule to the Enduring Powers of Attorney (Prescribed Form) Regulation be replaced with a form and explanatory notes along the lines of those set out at Annex C or D to the report, if Recommendation 1 accepted.

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PROPOSED LAW REFORM
 2008 Report reiterated that the majority of those who responded to the question of extending EPAs to personal care (other than the giving or refusing of medical treatment) were in favour.  Separate project  Personal care to include decisions about the donor’s personal care, such as, for instance, where and with whom the donor lives and the donor’s daily dress and diet.  Difficult to make decisions on property/finance without relating it to personal care of the donor (P) ?

 LRC will consider whether the scope of EPAs in Hong Kong should be extended and, if so, to what extent.
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New LRC Study, June 2008
“Following the publication in March 2008 of a report on the execution requirements for enduring powers of attorney (EPAs), the Commission has been asked to consider whether the scope of an EPA should be extended to include decisions about the donor’s personal care” Source: http://www.hkreform.gov.hk

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PROPOSED LAW REFORM
Law Reform Commission of HK Report on Enduring Powers of Attorney, 26 March 2008 concluded: “EPAs offer significant benefits for the donor, the donor’s family and the community at large. It is in everyone’s interests to ensure that they are used widely.” (3.12) “None of the common law jurisdictions reviewed…except Ireland requires an EPA to be witnessed by a doctor and a solicitor” (3.13)

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PROPOSED LAW REFORM
Law Reform Commission of HK Report on Enduring Powers of Attorney, 26 March 2008 concluded: “We note the significant difficulties of executing an EPA under the existing provisions as described to us by solicitors with actual experience of the process. There is clearly a tension between enhancing the convenience of EPA execution and the need to ensure that donors are fully cognisant of the consequences of the execution, but we believe that the latter concern can be adequately met without retaining the existing requirement for a medical witness in every case.” (3.14)
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PROPOSED LAW REFORM
What are the benefits for the donor, the donor’s family and the community at large ? What are the significant difficulties ? Where is the tension ? Are safeguards adequate?
Consider some hypothetical cases. Mr. Chan Mr. Lee Mrs. Wong
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OVERSEAS EXPERIENCE
United Kingdom Enduring Powers of Attorney Act 1985

Law Commission Mental Incapacity Report No.231, 1995 Mental Capacity Act 2005
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OVERSEAS EXPERIENCE
English Mental Capacity Act 2005 Section 9 Lasting Powers of Attorney Scope:  personal welfare + specific matters  property and affairs + specific matters “which includes authority to make such decisions in circumstances where the donor (P) no longer has capacity.” Effect:  The LPA is not created unless, inter alia, it is registered in accordance with Schedule 1.
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OVERSEAS EXPERIENCE
English Mental Capacity Act 2005 Section 11(7) D’s authority extends to giving or refusing consent to the carrying out or continuation of treatment by a person providing healthcare for P But does not extend to life-sustaining treatment, unless the instrument contains express provision to that effect.

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OVERSEAS EXPERIENCE
Whole Package Approach English Mental Capacity Act 2005 Code of Practice for the Mental Capacity Act, Lord Chancellor, April 2007. The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations, SI 2007 No. 1253, passed April, effective October 2007. Regulations 14 and 15. Practice Note of the Law Society of England & Wales, Sept 2007. ….

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OVERSEAS EXPERIENCE
Powers of Attorney Act 1996, Ireland  Scope includes property, business and financial matters and personal care  Signed by donor (P) and solicitor, witnessed by a third party  Doctor must sign additional form stating that P has capacity  Law Society recommends 30 day rule  Notification (mandatory to include spouse/relative and one other person) and Registration requirement  Objections may be raised against registration  More than 600 EPA signed between 1997 to 2006.
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OVERSEAS EXPERIENCE
Protection of Personal and Property Rights Act 1988, New Zealand, as amended in 1997. The Act does not impose requirement for medical certification at the time of execution if the EPA were to take effect immediately. But a new section 97 requires medical certification at the point of incapacity if the EPA does not take effect until incapacity. (2.54)

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OVERSEAS EXPERIENCE
Whole Package Approach

Minimum Procedural Safeguards
    Certification Notification Registration Objection

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OVERSEAS EXPERIENCE
Personal care matters may include:  Where donor (P) lives  Who P lives with  Whether P works, and if so, where and how  What education or training P gets  Whether P applies for licence or permit  P’s daily dress and diet  Whether to consent to forensic examination  Whether P will go on holiday  Legal matters related to personal care Powers of Attorney Act 2006, ACT, Australia, Quoted in both 2007 Consultation and 2008 Report
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SUMMARY OF ANALYSIS
 LRC Report pointed the way to relaxing EPA execution.  Next step is to clarify the role of the solicitor and the medical practitioner at different stages: execution, onset of incapacity, etc. before considering R 1 or R 2.  Need to carefully assess the overseas contexts where medical witness dispensed with, to contrast it with the HK regulatory framework, to ensure no gaps in the safeguards that would permit P to be taken advantage of or D to abuse any power given.

 Need to clarify the relationships between the will / PA / EPA / AD and trusts and their purposes
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SUMMARY OF ANALYSIS
 Legislative amendment and drafting of Code of Practice for EPAs under the proposed new regime appear inevitable.  Exploration and tackling of other reasons for the low take-up rate other than execution issues.  The importance of ensuring safeguards and engaging the views of medical, nursing, clinical psych, social work and related practitioners by the proposal to extend EPAs to Personal Care.
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SUMMARY OF ANALYSIS
   
    Focus of Public Education on EPA: Understand the pros and cons Give effect to intention of donors (P) Protection of vulnerable P How to safeguard against misuse, abuse, undue influence and fraud – checks and balances Minimize future uncertainty and litigation Conducted in the context of existing law Nothing to be afraid of, but Not a blanket solution and not suitable for everyone
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SUMMARY OF ANALYSIS
Submission: Co-operation of the medical, legal and other care-giving professions for the successful implementation of EPA is just as important, if not more, in the proposed new regime. The professions can influence the shape of the future EPA regime.

Just what form new EPAs will take remains to be seen.
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REFERENCES
1. 2. 3. 4. 5. 6. 7. 8. Law Reform Commission of HK Report on Enduring Powers of Attorney, 26 March 2008. Law Society of HK submissions, 26 June 2007. HK Bar Association Comments on Consultation Paper on EPA, 31 January 2004, 15 June 2007 Law Reform Commission of HK Consultation Paper on Enduring Powers of Attorney, April 2007. Law Reform Commission of HK Report on Substitute Decision-Making and Advance Directives In Relation to Medical Treatment, August 2006. Hong Kong legislation obtained from the BLIS website: http://www.legislation.gov.hk English legislation obtained from the OPSI website: http://www.opsi.gov.uk McHale and Fox, Health Care Law Text and Materials, 2nd Ed., Thomson, 2007. Herring, Medical Law and Ethics, OUP, 2006.

9.

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ACKNOWLEDGEMENT
The support of the Hong Kong Jockey Club Charitable Trust and the CADENZA Project: A Jockey Club Initiative for Seniors is gratefully acknowledged.

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Contact: Alexandra Lo, Dak Wai 羅德慧 Professional Consultant Faculty of Law, CUHK alex@cuhk.edu.hk alex.cadenza@gmail.com Tel: 3163 4398
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THANK YOU

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