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a. Authority

In order not to give the attorney excessive power, the law provides that an EPA must “specify…the particular matters, property or affairs in relation to which the attorney has authority to act” (section 8(1)(b) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong)).  The attorney therefore will not gain an overwhelming authority to manage all the donor’s assets against the donor’s wishes because the attorney’s power is limited by whatever the donor has particularly specified in the EPA.

 

Section 8 of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) also stipulates as follows:

 

(3)    An attorney may, subject to any conditions and restrictions contained in the enduring power and without obtaining any consent-

  • (a)     execute or exercise all or any of the trusts, powers or discretions vested in the donor as trustee and may, without the concurrence of any other person, give a valid receipt for capital or any other money paid;

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  • (b)     act under the power so as to benefit himself and other persons (not being the donor) to the following extent, but no further-


    • (i)      he may so act in relation to himself or in relation to any other person if the donor might be expected to provide for his or that person's needs respectively; and
      (ii)     he may do whatever the donor might be expected to do to meet those needs; and

  • (c)     without prejudice to paragraph (b) and subject to subsection (4), dispose of the property of the donor by way of gift to the following extent, but no further-

     

    • (i)      he may make gifts of a seasonal nature or at a time or on an anniversary of a birth or marriage to persons (including himself) who are related to or connected with the donor; and
      (ii)     he may make gifts to any charity to which the donor made or might be expected to make gifts.

(4)  A gift under subsection (3)(c) must not be unreasonable having regard to all the circumstances, in particular, the donor’s estate.

 

In other words, even though an attorney himself/herself is allowed to benefit from the donor’s assets, his/her acts will be scrutinized under the test of reasonableness if any dispute arises.

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