IV. When will an Enduring Power of Attorney take effect?
According to the prescribed forms as set out in Schedule 1 and Schedule 2 to the Enduring Powers of Attorney (Prescribed Form) Regulation (Cap.501A of the Laws of Hong Kong), a donor has the option of having the EPA take effect:
- on the date it is signed before the solicitor; or
- on a later specified date; or
- upon the occurrence of a later event.
This is consistent with section 10 of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong), which specifies that an EPA commences “where a date or an event is specified in the instrument creating it, for its commencement, on that date or happening of that event; and where no such date or event is specified, on its execution.”
In other words, if a donor does not specify a date for the commencement of their EPA or an event to trigger its commencement, the EPA will commence upon its execution, i.e. as soon as it is duly signed before a solicitor (section 10(3) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong)). It is therefore essential for a donor to be fully aware of his/her choice for the time at which the EPA will come into operation: upon its execution, at a later date or at a later event?
The definition of “execution” under section 10(3) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) also makes it clear that an EPA remains an uncompleted and useless document unless and until the donor signs it in the presence of a solicitor. If there is a time gap between the signing before the medical practitioner and the signing before the solicitor, the EPA is not a valid enduring power of attorney during this time gap. It will not even constitute an ordinary power of attorney during such period; section 10(2) expressly states: “To avoid doubt, an enduring power does not commence as a power of attorney before it is executed.”