a. Registration of an EPA

a. Registration of an EPA

To further safeguard a donor’s interests, the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) prescribes:

• under section 4(2): “If the attorney has reason to believe that the donor is or is becoming mentally incapable he must, as soon as practicable, apply under section 9 for registration of the instrument creating the power.” 

• under section 4(3): “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.”

An attorney is therefore be effectively barred from dealing with the donor’s assets before the registration process is completed.  This registration system, which is administered by the Registrar of the High Court of Hong Kong, will ensure that a register of every EPA in force is kept with the Court, which in turn will allow any person to inspect any EPA and thus be able to monitor an attorney’s activity.

One should also note: while section 4(2) provides that an attorney must apply for the registration of the EPA upon the donor becoming mentally incapable, it does not mean that the attorney or the donor cannot register the EPA before the onset of the donor’s mental incapacity.  In other words, the donor can apply for the registration of the EPA soon after executing an EPA, i.e. while he/she is still mentally sound.  This would have the benefit of ensuring that the registration occurs while the donor is still in control of the matter.

Under section 9(5) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong), a register of EPAs registered under the Ordinance is kept by the Registrar and all the registers as well as the EPAs are open to public inspection.

Section 13(2) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) provides that where an EPA is registered, its revocation would require confirmation of the court following an application made by or on behalf of the donor.

In deciding the timing of registration of the EPA, the donor should take into account his or her own circumstances and the effects of the registration under sections 9(5) and 13(2) of the Ordinance.