XN000022-1996-12-27 — Page 3

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Enduring Powers of Attomey Bill gazetted

The government today (Friday) gazetted an Enduring Powers of Attorney Bill to introduce a relatively simple, effective and inexpensive scheme called an enduring power of attorney, for a person to manage the property and financial affairs of another person who has became mentally incapacitated.

The Bill will be introduced for First Reading and commencement of Second Reading in the Legislative Council on January 8.

Also gazetted today for introduction in the Legislative Council is a complementary Powers of Attorney (Amendment) Bill 1996.

A government spokesman explained that a power of attorney is a formal arrangement whereby one person (the donor) gives another person (the attorney or donee) authority to act on his behalf and in his name.

In Hong Kong, once a person becomes incapacitated, the only way another person can lawfully act on that person's behalf is by being appointed by the High Court as a receiver to manage the incapacitated person's property and affairs under the Court's direction.

The donor's loss of mental capacity has, as a general rule, the effect of automatically revoking a power of attorney, so that the attorney no longer has actual authority.

"However, the cost, formalities and time involved in making an application for the appointment of a receiver and subsequent applications for the Court's approval of specific transactions often deter the donor's relatives from approaching the Court for legal assistance," the spokesman said.

He pointed out that in response to similar problems, many jurisdictions overseas have enacted legislation allowing the creation of a new device called an "enduring power of attorney", which is not revoked by the mental incapacity of its donor.

The proposed scheme in Hong Kong incorporates provisions from a variety of models in other jurisdictions and is relatively simple, effective and inexpensive as compared with the present English scheme.

There will also be a uniform definition of "mental incapacity" for all purposes in connection with both an ordinary or enduring power of attorney introduced to replace the common law meaning of the term.

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