Cap 501 - Enduring Powers of Attorney Ordinance 1
Chapter: 501 Enduring Powers of Attorney Ordinance Gazette Number Version Date
Long title E.R. 2 of 2012 02/08/2012
An Ordinance to provide for the creation of enduring powers of attorney and matters related thereto.
[27 June 1997] L.N. 365 of 1997
(Enacting provision omitted—E.R. 2 of 2012)
(Originally 17 of 1997)
(*Format changes—E.R. 2 of 2012)
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Note:
*The format of the Ordinance has been updated to the current legislative styles.
Section: 1 Short title E.R. 2 of 2012 02/08/2012
(1) This Ordinance may be cited as the Enduring Powers of Attorney Ordinance.
(2) (Omitted as spent—E.R. 2 of 2012)
Section: 2 Interpretation E.R. 2 of 2012 02/08/2012
(1) In this Ordinance, unless the context otherwise requires-
attorney (受權人), in relation to an enduring power, means the person appointed as attorney under the power;
court (法院) means the Court of First Instance; (Amended 25 of 1998 s. 2)
donor (授權人), in relation to an enduring power, means the person giving the power;
enduring power (持久授權) means an enduring power of attorney;
enduring power of attorney (持久授權書) means a power of attorney which is an enduring power of attorney within
the meaning of section 3;
mentally incapable (精神上無能力行事) and mental incapacity (精神上無行為能力) mean being mentally
incapable and suffering from mental incapacity within the meaning of section 1A of the Powers of Attorney
Ordinance (Cap 31) and mentally capable (精神上有能力行事) and mental capacity (精神上行為能力)
must be construed accordingly;
prescribed (訂明) means prescribed by regulations made under section 18;
prescribed explanatory information (訂明說明資料) means the information prescribed under section 18 (which is
described in subsection (2) of that section);
registered (註冊) means registered under section 9;
trust corporation (信託法團) has the meaning assigned to it by the Trustee Ordinance (Cap 29).
(2) For the avoidance of doubt it is declared that for the purposes of this Ordinance the references to "power of
attorney" and "effect of the power of attorney" in section 1A of the Powers of Attorney Ordinance (Cap 31) are
to be construed as references respectively to "enduring power" and "effect of the enduring power and the
prescribed explanatory information in the enduring power".
Section: 3 Characteristics of an enduring power E.R. 2 of 2012 02/08/2012
(1) For the purposes of this Ordinance, a power of attorney is an enduring power of attorney if the instrument which
creates the power-
(a) is in the prescribed form;
(b) was executed in the prescribed manner by the donor and the attorney; and
(c) contained at the time of execution by the donor the prescribed explanatory information.
(2) For the purposes of this section-
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(a) an instrument in the prescribed form purporting to have been executed in the prescribed manner shall be
taken, in the absence of evidence to the contrary, to be a document which incorporated at the time of
execution by the donor the prescribed explanatory information; and
(b) where the instrument differs in any respect which is not material in form or mode of expression from that
prescribed, it shall be treated as being in the prescribed form.
(3) For the avoidance of doubt it is declared that an instrument which purports to create an enduring power but does
not comply with this section cannot take effect as an enduring power.
Section: 4 Enduring power to survive mental incapacity of donor E.R. 2 of 2012 02/08/2012
(1) Subject to this section, where an individual creates an enduring power, the power is not revoked by reason of
any subsequent mental incapacity of the donor.
(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.
(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.
(4) So long as the authority of the attorney to act under the power is suspended by the operation of subsection (3),
section 5 of the Powers of Attorney Ordinance (Cap 31) shall apply (so far as applicable) as if the power had
been revoked by the donor's mental incapacity.
(5) Notwithstanding subsections (3) and (4), where the attorney has applied for registration of the instrument, he
may, pending such registration, act under the enduring power-
(a) to maintain the donor or prevent loss to his estate;
(b) to maintain himself or other persons in so far as section 8(3)(b) permits him to do so.
(6) Where the attorney purports to act under subsection (5), then, in favour of any person who deals with him
without knowledge that the attorney is acting otherwise than in accordance with paragraph (a) or (b) of that
subsection, the transaction between them is valid as if the attorney were acting in accordance with that paragraph
(a) or (b).
Section: 5 Mental capacity and formalities for execution of enduring
power
E.R. 2 of 2012 02/08/2012
(1) The mental capacity required for the creation of an enduring power is mental capacity within the meaning of
section 2.
(2) In executing an enduring power, the following must be complied with-
(a) subject to paragraph (b)—
(i) the donor must sign the instrument creating the enduring power before a registered medical
practitioner and a solicitor; and
(ii) the instrument must be signed by the donor before the solicitor either at the same time when it is
signed before the registered medical practitioner or at any time after that signing but before the expiry
of the period of 28 days after the day on which it is so signed; (Replaced 25 of 2011 s. 3)
(aa) the registered medical practitioner and the solicitor before whom the instrument is signed must each be a
person other than the person being appointed as the attorney, the spouse of such person or a person related
by blood or marriage to the donor or the attorney; (Added 25 of 2011 s. 3)
(b) if the donor is physically incapable of signing, any other person, not being the attorney, the spouse of the
attorney, the registered medical practitioner or the solicitor before whom the instrument is signed or the
spouse of the registered medical practitioner or the solicitor, may sign the instrument on behalf of the donor
in the presence, and under the direction, of the donor; (Replaced 25 of 2011 s. 3)
(c) the attorney must sign the instrument; (Replaced 25 of 2011 s. 3)
(d) the solicitor must certify-
(i) (Repealed 25 of 2011 s. 3)
(ii) that the donor appeared to be mentally capable (specifying in the certification that the donor appeared
to be mentally capable in terms of section 2); and
(iii) that the instrument was signed in the presence of the solicitor and, if it is signed by the donor, that the
donor acknowledged that it was signed voluntarily and, if it is signed on the donor’s behalf, that it
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was so signed in the presence, and under the direction, of the donor; and (Replaced 25 of 2011 s. 3)
(e) the medical practitioner must certify-
(i) (Repealed 25 of 2011 s. 3)
(ii) that the registered medical practitioner was satisfied that the donor was mentally capable (specifying in
the certification that the registered medical practitioner was satisfied that the donor was mentally
capable in terms of section 2); and (Replaced 25 of 2011 s. 3)
(iii) that the instrument was signed in the presence of the registered medical practitioner and, if it is signed
by the donor, that the donor acknowledged that it was signed voluntarily and, if it is signed on the
donor’s behalf, that it was so signed in the presence, and under the direction, of the donor. (Replaced
25 of 2011 s. 3)
Section: 6 Restrictions on being an attorney E.R. 2 of 2012 02/08/2012
A power of attorney cannot be an enduring power unless when he executes the instrument creating it, the attorney-
(a) is an individual who has attained the age of 18 years and is not bankrupt or mentally incapable; or
(b) is a trust corporation.
Section: 7 Instruments which cannot be enduring powers E.R. 2 of 2012 02/08/2012
A power of attorney which-
(a) empowers the attorney to appoint another person in substitution for himself or as his successor; or
(b) empowers the attorney to delegate trusts for the purposes of section 27 of the Trustee Ordinance (Cap 29),
cannot be an enduring power.
Section: 8 Scope of authority, etc. of attorney under enduring power 13 of 2013 01/12/2013
(1) An enduring power-
(a) must not confer on the attorney any authority other than authority to act in relation to the property of the
donor and his financial affairs;
(b) subject to paragraph (a), must specify, in accordance with regulations made under section 18, the particular
matters, property or affairs in relation to which the attorney has authority to act.
(2) An instrument which purports to create an enduring power which does not comply with subsection (1) cannot
take effect as an enduring power.
(3) An attorney may, subject to any conditions and restrictions contained in the enduring power and without
obtaining any consent-
(a) (Repealed 13 of 2013 s. 56)
(b) act under the power so as to benefit himself and other persons (not being the donor) to the following extent,
but no further-
(i) he may so act in relation to himself or in relation to any other person if the donor might be expected to
provide for his or that person's needs respectively; and
(ii) he may do whatever the donor might be expected to do to meet those needs; and
(c) without prejudice to paragraph (b) and subject to subsection (4), dispose of the property of the donor by
way of gift to the following extent, but no further-
(i) he may make gifts of a seasonal nature or at a time or on an anniversary of a birth or marriage to
persons (including himself) who are related to or connected with the donor; and
(ii) he may make gifts to any charity to which the donor made or might be expected to make gifts.
(4) A gift under subsection (3)(c) must not be unreasonable having regard to all the circumstances, in particular, the
donor's estate.
Section: 9 Registration and inspection of enduring power E.R. 2 of 2012 02/08/2012
(1) An application to register, for the purposes of section 4(2), an instrument creating an enduring power must be
made to the Registrar of the High Court. (Amended 25 of 1998 s. 2)
(2) Where an application is made under subsection (1), the Registrar shall register the instrument concerned, if he is
Cap 501 - Enduring Powers of Attorney Ordinance 4
satisfied that the instrument purports to create an enduring power, the requirements in this Ordinance or in any
rules relating to the registration of such an instrument have been complied with and the fee payable for such
registration has been paid.
(3) The original and a certified copy of any instrument registered under this section must be lodged with the
Registrar.
(4) The Registrar shall keep a register of instruments which are registered under this section, in a form approved by
the Chief Justice.
(5) The Registrar shall-
(a) have the custody of-
(i) the register kept under subsection (4); and
(ii) any instrument registered under this section; and
(b) allow any person to inspect the register and the instruments during office hours and obtain copies thereof
(sealed or otherwise) on payment of the fee payable therefor.
(6) The power to make rules under section 54 of the High Court Ordinance (Cap 4) includes a power to make rules
of court (including rules specifying fees) for the purposes of this section. (Amended 25 of 1998 s. 2)
(7) For the avoidance of doubt it is declared that-
(a) this section shall not be construed as requiring the Registrar to determine the validity of an instrument for
the registration of which an application is made under subsection (1); and
(b) registration does not validate an enduring power which is invalid.
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Note:
Please see the Enduring Powers of Attorney (Registration) Rules (Cap 4 sub. leg. E).
Section: 10 Commencement E.R. 2 of 2012 02/08/2012
(1) Subject to section 4(3), an enduring power commences- (Amended 25 of 2011 s. 4)
(a) where a date or an event is specified in the instrument creating it, for its commencement, on that date or the
happening of that event; and
(b) where no such date or event is specified, on its execution.
(2) To avoid doubt, an enduring power does not commence as a power of attorney before it is executed. (Added 25
of 2011 s. 4)
(3) For the purposes of subsections (1)(b) and (2), an enduring power is executed when it is duly signed before the
solicitor in compliance with the requirements in section 5. (Added 25 of 2011 s. 4)
(4) Subsections (2) and (3) do not affect any enduring power executed before the commencement date* of the
Enduring Powers of Attorney (Amendment) Ordinance 2011 (25 of 2011). (Added 25 of 2011 s. 4)
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Note:
* Commencement date : 3 July 2012.
Section: 11 Functions of court in relation to enduring power E.R. 2 of 2012 02/08/2012
(1) The court may on the application of an interested party-
(a) require the attorney under an enduring power to produce records and accounts and make an order for their
auditing;
(b) revoke an enduring power or vary an enduring power; or
(c) if satisfied that the interests of the donor of an enduring power so require it, remove the attorney.
(2) The attorney under an enduring power may apply to the court for directions on the meaning and scope of the
authority of the power.
(3) The court may relieve the attorney under an enduring power wholly or partly from any liability which he has or
may have incurred on account of a breach of his duties as attorney, if it appears to the court that the attorney has
acted honestly and reasonably.
(4) The court shall cancel the registration of an instrument creating an enduring power-
(a) where the enduring power has expired or is revoked under section 13;
(b) where it confirms, under section 17, the revocation of the enduring power; or
(c) where the attorney is removed under subsection (1)(c).
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Section: 12 Attorney's duties and liabilities E.R. 2 of 2012 02/08/2012
(1) The attorney's duties towards the donor of an enduring power are of a fiduciary nature.
(2) Without limiting the generality of subsection (1), the attorney under an enduring power has a duty-
(a) to exercise his powers honestly and with due diligence;
(b) to keep proper accounts and records;
(c) not to enter into any transaction where a conflict of interest would arise with the donor; and
(d) not to mix the property of the donor with other property.
Section: 13 Revocation of enduring power E.R. 2 of 2012 02/08/2012
(1) An enduring power is revoked-
(a) if the donor revokes it when he is mentally capable, or where the donor becomes mentally incapable after
the grant and the instrument is registered, if the donor revokes it after his recovery and the court makes an
order under subsection (2) confirming the revocation;
(b) on the bankruptcy of the attorney;
(c) if a court makes an order for its revocation under section 11(1)(b) or for the removal of an attorney under
section 11(1)(c);
(d) (Repealed 81 of 1997 s. 59)
(e) on the appointment of a committee pursuant to Part II of the Mental Health Ordinance (Cap 136), if the
court gives a direction revoking the enduring power;
(f) on the death of the donor or the attorney; or
(g) subject to this Ordinance, on any ground on which a power of attorney is revoked at common law.
(2) Where the enduring power is registered, on application made for the purpose, by or on behalf of the donor, the
court shall confirm the revocation of the power if satisfied that the donor has done whatever is necessary in law
to effect an express revocation of the power and was mentally capable of revoking a power of attorney when he
did so.
Section: 14 Protection where instrument does not create valid
enduring power and the power has been revoked by
donor's mental incapacity
E.R. 2 of 2012 02/08/2012
(1) The following applies where an instrument is framed in the prescribed form but does not create a valid enduring
power (but creates a power of attorney) and the power is revoked by the donor's supervening mental incapacity
(whether or not the instrument has been registered)-
(a) an attorney who acts under the power does not by reason of the revocation incur any liability (either to the
donor or to any other person) unless at the time of so acting he knew-
(i) that the instrument did not create a valid enduring power; and
(ii) that the donor has become mentally incapable;
(b) any transaction between the attorney and any other person, in favour of that person, is as valid as if the
power had then been in existence, unless at the time of the transaction that person knew-
(i) that the instrument did not create a valid enduring power; and
(ii) that the donor has become mentally incapable;
(c) where the interest of a particular purchaser depends on whether a transaction between the attorney and any
other person was valid by virtue of paragraph (b), it shall be conclusively presumed in favour of the
purchaser that the transaction was valid if-
(i) the transaction between that person and the attorney was completed within 12 months of the date on
which the instrument came into operation; or
(ii) that person makes a statutory declaration, before or within 3 months after the completion of the
purchase, that he had no reason at the time of the transaction to doubt that the attorney had authority to
dispose of the property which was the subject of the transaction.
(2) The following applies for the purposes of this section-
(a) purchaser (購買人) has the meaning assigned to it by section 5(6) of the Powers of Attorney Ordinance
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(Cap 31);
(b) section 5(8) of the Powers of Attorney Ordinance (Cap 31) applies to and in relation to any reference to
statutory declaration.
Section: 15 Appointment of joint and several attorneys E.R. 2 of 2012 02/08/2012
(1) An instrument which appoints more than one attorney cannot create an enduring power unless the attorneys are
appointed to act jointly or jointly and severally.
(2) The provisions of this Ordinance apply to joint attorneys subject to the following-
(a) the reference in section 6(a) to the time of the execution of the instrument by the attorney must be read as a
reference to the time when the second or last attorney executed the instrument;
(b) the reference to the attorney in sections 7(a) and 13(1)(b) and (f) must be read as a reference to any attorney
under the power.
(3) The provisions of this Ordinance apply to joint and several attorneys subject to the following-
(a) a failure as respects one attorney to comply with the requirements of the creation of the power operates to
prevent the instrument from creating such a power in relation to him, but does not affect its efficacy for that
purpose as respects the other or other attorneys in relation to whom those requirements have been complied
with or its efficacy for the purpose of creating a power of attorney which is not an enduring power;
(b) the instrument may be registered by any one of the attorneys;
(c) the reference to the death of the attorney in section 13(1)(f) must be construed as a reference to the last of
the remaining attorneys under the power;
(d) with regard to section 13(1)(b)-
(i) the reference to the bankruptcy of the attorney in that section must be construed as a reference to the
bankruptcy of the last remaining attorney under the power; and
(ii) any other attorney who becomes bankrupt ceases to be an attorney on his bankruptcy.
Section: 16 No waiver of requirements of Ordinance E.R. 2 of 2012 02/08/2012
A waiver of the requirements of this Ordinance pursuant to an agreement or otherwise is not valid.
Section: 17 Protection against disclaimer by attorney E.R. 2 of 2012 02/08/2012
The following applies in relation to the disclaimer by the attorney under an enduring power-
(a) where the donor is mentally incapable or where the enduring power is registered, a disclaimer by the
attorney does not revoke the power unless on application made for that purpose by the attorney, the court
confirms that the power is revoked by the disclaimer;
(b) the court may confirm, under paragraph (a), that a power is revoked by a disclaimer where it is satisfied that
the attorney has done whatever is necessary in law to effect a revocation of a power of attorney by a
disclaimer; and
(c) where the donor is mentally capable and the instrument creating the enduring power is not registered, a
disclaimer by the attorney has the same effect as a disclaimer has in relation to a power of attorney at
common law.
Section: 18 Regulations E.R. 2 of 2012 02/08/2012
(1) The Secretary for Justice may make regulations as regards the form, manner of execution and other matters
relating to the creation of an enduring power. (Amended L.N. 362 of 1997)
(2) Without affecting the generality of subsection (1), regulations made under that subsection may-
(a) provide that an instrument does not create an enduring power unless it contains such information, as may be
prescribed, explaining the effect of creating an enduring power and the effect of accepting such a power;
(b) specify the form in which the matters in relation to which the attorney has authority to act must be set out in
the instrument; and
(c) for the purposes of paragraph (b), specify a list of powers, decisions or other matters with reference to
which the attorney is to be given authority to act.
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(3) The prescribed form for the instrument creating an enduring power of attorney may provide for the donor to
nominate the persons (whose number must not exceed the number specified in the form) to be notified by the
attorney before the attorney applies for the registration of the instrument under section 9. (Replaced 25 of 2011
s. 5)
Section: 19 Effect of failure to notify persons nominated by donor E.R. 2 of 2012 02/08/2012
Where provision is made under section 18(3) for nomination of persons for the purpose of notification and the donor
of an enduring power makes such a nomination, the failure (for whatever reason) by the attorney to notify any person
so nominated has the following effect-
(a) it does not preclude the registration of the instrument creating the enduring power;
(b) the enduring power is not invalidated by reason of such failure; and
(c) in any legal proceedings relating to the enduring power, where it considers it appropriate, the court may
draw an adverse inference from such failure.
Section: 20 Transitional and savings for repeal of section 8(3)(a) 13 of 2013 01/12/2013
(1) Subject to subsections (2) and (3), the repealed section 8(3)(a) continues to apply to an enduring power of
attorney created before the commencement date (pre-existing PA) and is in force on that date for a period of one
year from the commencement date as if that section had not been repealed.
(2) If the instrument creating a pre-existing PA is registered as at the commencement date, the repealed section
8(3)(a) ceases to apply to the pre-existing PA when the registration of the instrument is cancelled.
(3) If an application for the registration of an instrument creating a pre-existing PA is pending as at the
commencement date, or is made during the period of one year from that date, then the repealed section 8(3)(a)
ceases to apply to the pre-existing PA—
(a) if the instrument is registered pursuant to the application, whether during or after that one-year period, when
the registration of the instrument is cancelled; or
(b) if the application is finally refused by the Registrar of the High Court or withdrawn by the applicant or
otherwise finally disposed of, whether during or after that one-year period, when the application is finally
refused, withdrawn or otherwise finally disposed of.
(4) In this section—
cancelled (被取消) means cancelled under section 11(4);
commencement date (生效日期) means the date on which section 57 of the Trust Law (Amendment) Ordinance
2013 (13 of 2013) comes into operation.
(Added 13 of 2013 s. 57)
