b. Duties and liabilities

b. Duties and liabilities

Section 12(1) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong)) emphasizes that an attorney’s duties towards the donor “are of a fiduciary nature”.  So what is “fiduciary”?

A renowned Judge in the House of Lords in the UK once defined “fiduciary” as follows: “A fiduciary is someone who has undertaken to act for and on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.” (Bristol & West Building Society v Mothew [1998] Ch 1 at 18, Millett LJ)

In light of this fiduciary nature, the attorney is expected to administer the donor’s assets only for the donor’s benefit.  The attorney definitely should not profit from the administration of the donor’s assets, and must avoid a situation where his/her interest will conflict with the donor’s. To put it simply, in the process of the administration of the donor's estate and affairs, the attorney must give the donor’s interest at paramount importance.

Section 12(2) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) expresses in clear and plain terms that an attorney under an EPA has the following duties:

"(a)    to exercise his powers honestly and with due diligence;
 (b)     to keep proper accounts and records;
 (c)     not to enter into any transaction where a conflict of interest would arise with the donor; and
 (d)     not to mix the property of the donor with other property."

These statutory terms should serve as adequate guidelines to an attorney in respect of his/her basic duties.