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1. Let’s assume that a donor specifies in the Enduring Power of Attorney that it shall take effect when the donor is diagnosed to be suffering from dementia.  A few years later, the donor shows symptoms of dementia.  The attorney, however, does not lodge the Enduring Power of Attorney with the Court for registration.  When the donor is eventually diagnosed to be mentally incapable, the attorney still does not lodge the Enduring Power of Attorney with the Court for registration.  Can the attorney exercise his/her powers under the Enduring Power of Attorney?  After all, the Enduring Power of Attorney stipulates that it will take effect upon the donor being diagnosed to be suffering from dementia.  It appears that the attorney, while breaching the requirement to register it, has not done anything wrong under the Enduring Power of Attorney.  So is registration redundant?

No. Let’s imagine this scenario: the attorney brings the unregistered EPA to a bank and tries to withdraw money from the donor’s bank account (on the assumption that this power is listed in the EPA).  He/She also brings along a medical certificate confirming that the donor is suffering from dementia.  The attorney tells the bank clerk: “Hey, take a look at this EPA; the donor signed it; the doctor signed it; and the lawyer signed it.  I also have this medical certificate.  So now give me the money.”  Will the bank clerk gladly comply?  Probably not: Section 4(3)of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) states: “In the event of the subsequent mental incapacity of the donor, the attorney shall not do anything under the authority of the power unless or until it is registered.”  The bank clerk probably would not comply with the attorney’s request based on an unregistered EPA. Registration of an Enduring Power of Attorney is therefore an essential step in ensuring that the Enduring Power of Attorney becomes effective, and accepted by all institutions.

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