To deal with persons who are mentally incapacitated, the Mental Health Ordinance (Cap. 136) is included as an indispensable part of the Hong Kong laws. According to the Ordinance, “mental incapacity” is defined as either a mental disorder or mental handicap.
Guardianship
To commence with the application for appointment of committee, an application for an inquiry into whether the person concerned is incapable of managing and administering his/her property and affairs due to mental incapacity shall be made. The application for inquiry can also be made by any relatives of the person concerned.
Once it is confirmed that the person concerned is incapacitated, the court may make orders for the maintenance or other benefit of that person and his/her family and for administering his/her property and affairs. The appointment of committee will be responsible for the aforementioned matters.
Enduring Power of Attorney (EPA)
The Enduring Power of Attorney (EPA) is a special type of legal document which is specifically governed by the Enduring Powers of Attorney Ordinance (Cap 501). As stipulated in the Ordinance, an EPA allows the donor (the person who wishes to give their power of attorney to someone), while he/she still possesses mental capability, to appoint an attorney(s) to manage the donor’s financial matters, even if he/she subsequently becomes mentally incapacitated.
While a general power of attorney will cease to be effective if one become mentally incapacitated, an EPA will, despite of donor’s mental incapacity, continue to be effective and grant the attorney the power to manage donor’s financial affairs.
Key advantages of an EPA
In view of the ageing population and increasing number of dementia cases in society, there is growing necessity and significance of EPA. The Law Reform Commission of Hong Kong published the Report on Enduring Powers of Attorney in March 2008 which highlighted several key advantages of an EPA:
“ (a) it allows an individual to choose the person or persons who will look after the individual’s affairs if he becomes incapable of doing so;
(b) it avoids expensive and potentially distressing court proceedings for the appointment of [another person] to look after the individual’s affairs;
(c) it provides an efficient and cost-effective way of administering the individual’s property.”
The Report also states that “The use of an EPA has benefits not only for the donor, but also for the donor’s family who might otherwise be faced with considerable difficulties and distress in managing his affairs. From the wider community’s point of view, an EPA can avoid the need to apply scarce court resources unnecessarily to the management of an individual’s affairs.”
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