“An EPA or LPA ensures that, should you be unable to manage your own affairs, those you appoint can make decisions on your behalf”
Our rapidly ageing world is making a case for all Hong Kong residents to consider having an Enduring Power of Attorney (EPA) or Lasting Powers of Attorney (LPA) if you are a UK National/resident.
Navigating the legal complexities that come with declining mental capacity and protecting one's assets or health can be daunting so obtaining an EPA or LPA could prove invaluable if ever needed.
Let's now explore some more and explain everything you need to know about securing your future.
What is a Power of Attorney?
What will happen if at any point in the future, you're mental capacity reduces and leaves you unable to manage your finances or make important health decisions? Wouldn't it be better if somebody you know well and who you trust, is appointed as your 'attorney' and could take control and make those decisions for you? That's where a legal document called a Power of Attorney comes into its own. It will allow the person chosen by you to act as your eyes, ears and brain when unfortunate events occur and your ability to make decisions for yourself has gone.
Without having such a document, lengthy court proceedings await those you would want to look after your affairs. In some cases, banks can freeze joint bank accounts of spouses, restricting their access to funds.
Discover the Power of Lasting Powers of Attorney & Understand What these Legal Documents can do for you.
ENDURING POWERS OF ATTORNEY
Hong Kong Residents
If you reside in Hong Kong, you can gain significant benefits from having an Enduring Power of Attorney (EPA) document. An appointed attorney can make decisions on your behalf regarding financial and property affairs when you are no longer able to do so yourself. Additionally, the attorney can handle legal matters and represent you in any court proceedings.
The EPA does not cover medical and health care decisions; instead, this requires a separate document called a "Living Will."
Why should you have an EPA?
Having an Enduring Power of Attorney (EPA) is crucial for Hong Kong residents because it provides peace of mind and ensures that their affairs, financial or legal, are taken care of should they become mentally incapacitated or incapable.
Without an EPA, the family and loved ones may be required to go through a legal process to attain a guardianship order, which can be a costly and time-consuming exercise.
Having an EPA in place can also prevent disputes among family members, ensuring that your wishes are carried out according to your instructions.
Furthermore, an EPA grants the power to choose someone who can be trusted to make decisions on your behalf, providing you with consistency, as well as a sense of control and security even under difficult circumstances.
When does the EPA come into effect?
The EPA comes into effect when the donor is mentally incapable of managing their affairs.
For a Hong Kong EPA to be legally recognised and accepted it has to be registered with the High Court. Banks and other Hong Kong institutions have the right not to accept EPA’s that haven't previously been registered with the High Court.
To register your EPA, you'll need to complete the prescribed forms and follow the guidelines set out in the Enduring Powers of Attorney (Prescribed Form) Regulation.
For more information on Hong Kong Enduring Powers of Attorney, Department of Justice provides a helpful archive on the topic.
Who can be appointed as an Attorney in Hong Kong?
In Hong Kong, you can appoint any person who is of sound mind and 18 years old or above as your attorney. However, it would be best if you choose someone you trust and has the capacity to perform the duties required by the document. You can choose a family member, friend, professional trustee or lawyer to act as your attorney. Keep in mind that the attorney's role is to act in your best interest and make decisions that you would make if you were still capable. It is essential to discuss your wishes and expectations with your appointed attorney before drafting the EPA.
How to ensure an EPA complies with legal requirements?
To ensure an Enduring Power of Attorney (EPA) complies with legal requirements in Hong Kong, there are a few crucial steps to follow.
Firstly, the document must be created while you are still mentally capable of making decisions. A Hong Kong doctor is required to assess your medical condition and declare that you are of sound mind.
The EPA must be in writing, and it should outline the powers granted to the appointed attorney, along with any restrictions, limitations, and additional instructions.
In Hong Kong, the EPA must be signed by you (the donor) and two independent adult witnesses.
It must also be certified by a solicitor licensed to practice in Hong Kong who must also sign and date the document.
What are the powers the attorney can perform for me?
Any attorney appointed in a Hong Kong Enduring Power of Attorney (EPA) are given a wide range of powers that they can perform as part of their role. These powers can be specified in the EPA document and can include the following:
- Managing finances, such as paying bills, managing bank accounts, handling investments, and dealing with property sales or purchases.
- Handling legal affairs, such as signing legal documents, representing you in court proceedings or negotiations, and handling any related legal matters.
- Making decisions related to health care, such as consenting to medical treatments, choosing healthcare providers, and making decisions regarding assisted living or nursing homes.
- Managing business affairs, such as running a business, signing business contracts, and making business-related decisions.
EPA’s limitations
However, there are some powers and decisions that an EPA cannot make. For example, an EPA cannot be used to create or modify an existing will, make personal care decisions or revoke a trust.
It's important to specify the powers granted to the appointed attorney in the EPA document and any constraints or limitations that may apply, as this will minimize potential disputes or misunderstandings that may arise in the future.
Questions?
ENDURING POWERS OF ATTORNEY
UK Residents
Having a Lasting Power of Attorney (LPA) can be crucial for UK expats or for anyone residing in Hong Kong that have UK assets. An LPA is a legal document that allows you to appoint one or more people to make decisions and act on your behalf if and when mental capacity has been lost. The people you appoint are known as the attorneys. There are two types of LPAs - Property and Affairs LPA, and Health and Welfare LPA.
Property and Affairs LPA
A Property and Affairs LPA allows the attorney to make decisions about the donor's property and financial affairs, including managing bank accounts and paying bills. This type of LPA can be used while the donor still has mental capacity, but no longer wishes to make certain decisions themselves, or when they lose it.
Health and Welfare LPA
On the other hand, a Health and Welfare LPA grants the attorney the authority to make decisions regarding the donor's personal welfare, including medical treatment and where the donor lives. This type of LPA only comes into effect when the donor lacks mental capacity.
Validity of LPAs
Creating a UK LPA involves filling out the relevant forms, which can be done online or offline. Once the forms are complete, they must be registered with the Office of the Public Guardian. It's crucial to follow the correct process to ensure the LPA is valid.
Uses of LPAs
LPAs are beneficial in various scenarios, such as if the donor develops a long-term illness or loses their mental capacity. They differ from other legal documents such as a will or a trust as they only apply while the donor is alive but lacks mental capacity.
HOW MUCH DOES IT COST?
Single LPA (UK)br> or EPA (HK) |
Any Two Documents Bundled |
Two UK LPA BundleLPA for Health and Welfare decisions and LPA for Property and Affairs decisions |
Hong Kong EPA + Two UK LPAs Bundle |
| HK$ 4,000* | HK$ 6,000* | HK$ 6,000* | HK$ 10,000* (per person) |
Related Costs & Disbursements*
There are certain other costs and disbursements relating to LPA’s & EPA’s which are also payable by you, these are:
- UK Lasting Power of Attorney:
- A Registration fee of £82 payable to the Office of Public Guardian.
- Hong Kong Enduring Powers of Attorney:
- Attending Physician Fees for a Hong Kong EPA, these are up to HK$ 4,000.
- The legal fees involved when establishing a Hong Kong EPA are HK$ 4,000.
- There is no Registration Fee when you first set up a Hong Kong EPA; you need to register it at the High Court before you need it. In 2023, the registration cost was HK$ 440.
