Three Instruments of Peace (IOP)
The IOP, namely the Will, Enduring Power of Attorney (EPA) and Advance Directive (AD) are important legal tools to plan and prepare for our future financial and medical needs, and for the protection of family members who are mentally incapacitated persons.
A Will is a document which sets out how a person’s assets are to be distributed after his or her death. The person making the Will is called the “testator”.
Any person over the age of 18 and possesses mental capacity may make a Will in Hong Kong. The mental capacity to execute a Will is referred to as ”Testamentary Capacity”, meaning that the testator must have the ability to:
Understand the nature of the act of making a Will and its effects
Understand the extent of property of which he is disposing
Comprehend and appreciate the claims to which he ought to give effect
If there is any reason to doubt the testator’s mental capacity, it is prudent to have a medical doctor assess and certify that the Testator has the relevant mental capacity when he gives instructions and executes the Will.
It is possible for a person to make a Will by himself, but it is generally advisable to seek help from a solicitor, especially where issues of mental capacity may arise. A well-drafted Will may also minimize potential disputes among family members and beneficiaries.
By making a Will, the testator can:
- Decide how his assets will be distributed amongst relatives other than according to the law of intestacy
- Leave assets to beneficiaries who are not related to him, e.g. friends and charities
- Appoint executor(s) to manage and distribute the assets.
Enduring Power of Attorney (EPA)
Enduring Power of Attorney (EPA) is governed by the Enduring Powers of Attorney Ordinance (Cap.501) in Hong Kong and allows the Donor to give authorities to one or more appointed Attorneys regarding the management of his property and financial affairs which will remain valid even if the Donor later becomes mentally incapacitated.
For an EPA to have legal effect, it must be made out in the “prescribed form” as required by the Ordinance. If you plan to make an EPA, you may first consult a lawyer to fill in the Form. You will need to sign it before a registered medical practitioner who will certify your mental capacity and, before a solicitor within 28 days thereafter. The appointed Attorney(s) must also sign on the EPA.
Advance Directive (AD)
Nowadays, medical technology is advancing by strides. Even when life is coming to an end and the disease becomes irreversible, there are still “treatment” to prolong survival. However, some life sustaining treatments (LST) are invasive and only prolong the dying process which may be of little meaning to the patient, or even aggravate patients’ suffering, such as cardiopulmonary resuscitation, assisted respiration and gastric tube insertion.
In Hong Kong, a mentally competent and properly informed adult aged 18 and above can make an Advance Directive (AD), explicitly expressing his wish to refuse specified LST when he is in an end-stage condition and no longer able to make medical decisions. If an AD is applicable and valid, doctors have the responsibility to follow the directive under common law.
No one including family members may revoke the AD made by the patient. The law of Hong Kong does not require an AD to be made in a specified format, but Hospital Authority (HA) of Hong Kong has designed an AD form for use by patients staying in hospitals supervised by HA.
If the public wishes to sign an AD in private hospital or clinic, it is best to consult the doctor who is taking care of the patient’s long-term illness(es), for example, people with chronic renal failure can discuss with their nephrologists. If you are a healthy person, you may talk to a geriatrician for further information.
Other Legal Tools
When someone has lost the ability to make decisions, the following legal tools can serve to protect his/her best interests:
Guardianship Order (GO)
In Hong Kong, Section IVB of the Mental Health Ordinance empowers the Guardianship Board to appoint guardians for adults who are mentally incapable of making their own decisions about personal affairs, financial matters, medical or dental treatment.
Protection of Children
There are a number of Ordinances in Hong Kong intended to enhance the rights of children and protect them from abuse, including: the ”Protection of Children and Juveniles Ordinance” and the ”Guardianship of Minors Ordinance”.
Special Needs Trust (SNT)
Individuals with special needs have legal right to own assets, however, it is difficult for them to manage the assets on their own. SNT provides reliable trustee to take care of financial matters for person with special needs after their parents have passed away.
Part IVC of the Mental Health Ordinance
Part IVC of the MHO empowers a doctor to provide appropriate and necessary medical/dental treatment to a MIP without consent.
Part II of the Mental Health Ordinance
If a person is unable to manage and administer his finances due to mental incapacity and where no enduring power of attorney has been made, the family members may only apply to the High Court to appoint a Committee under Part II of the MHO “to handle all the financial issues of the client” if the amount to be managed exceeds the maximum monthly financial limit granted by the Guardianship Order.
The Guardianship Board, under Part IVB of Mental Health Ordinance, is a quasi-judicial tribunal that makes order appointing guardians for adult MIPs who are unable to make their own decisions about matters such as medical treatment, welfare issues, and financial management.
The Guardianship Board has specific and limited powers and it can:
1. Make Guardianship Orders to appoint a guardian
The guardian could be a family member or friend or the public guardian (Director of Social Welfare);
2. Grant the following powers to the appointed guardian
(a) to require the person concerned to reside at a specific place;
(b) to require the person concerned to attend at a place and time for medical or dental treatment, special treatment, occupation, education or training;
(c) to consent to medical or dental treatment if the person concerned is incapable of understanding the general nature and effect of the treatment;
(d) to require access to the person concerned to be given to any doctor, approved social worker or other person specified in the Guardianship Order;
(e) to hold, receive or pay a specified monthly sum for the maintenance or other benefit of the person concerned (currently maximum at HK$17,400 per month).
Before making an application for guardianship, we should consider whether there is already an appropriate informal arrangement because initiating a guardianship application is primarily a legal proceeding. If the person concerned is receiving adequate assistance from his/her family members, friends, relatives or service providers, there may be no need for guardianship.
Getting a Guardianship Order may not be helpful in a variety of cases. Examples include withdrawing MPFs, dealing with insurance policies, renting, selling, assigning or managing real properties, trading in stocks, securities or other forms of investments, applying for a grant of probate, seeking work injury or accident compensations, handling disputes on investments or real properties, recovering misappropriated monies, handling problems on access and visits, and deciding on pension options for civil servants.
Regarding (1) the needs and appropriateness of applying guardianship, and (2) the procedure of the application, you may contact the following organizations for further information and assistance:
You can also seek advice from private psychiatrists or geriatricians and arrange mental capacity assessment for the MIP when indicated.
Part IVC of the Mental Health Ordinance
This is a legal requirement for doctors to seek informed consent from patients before giving any healthcare intervention. This reflects their ethical duty to respect a person’s autonomy. Incapacity for consent to treatment is defined under Part IVC of the Mental Health Ordinance (MHO) as the inability to understand the general nature and effect of the treatment.
Part IVC of the MHO gives a doctor the authority to provide urgent or non-urgent medical treatment to a mentally incapacitated person (MIP) without consent, provided that the treatment is necessary and in the best interests of the patient. This ensures the MIP is not deprived of necessary treatment, solely because he/she lacks the capacity to give consent. If the medical or dental treatment is necessary but not urgent, and the adult MIP has a legal guardianship with power to consent, then the doctor can obtain substitute consent from the Guardianship.
Children’s Protection & Welfare
The Protection of Children and Juveniles Ordinance (PCJO) is a key Ordinance in the protection of children and juveniles from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation (including sexual abuse) while in the care of parent(s), legal guardian(s) or any other person who has the care of the children.
The PCJO enables police offices and social workers to take action to protect a child or juvenile in need of care or protection. A care or protection order may be sought from the Juvenile Court.
The Guardianship of Minors Ordinance plays an important role in arrangements for the long
term welfare of children. The Ordinance enable parents and current guardians to appoint
other people to act as future guardians for their children who are still minors in the event of
the death of the parents or current guardians.
Part II of the Mental Health Ordinance
If a person is unable to manage and administer his finances due to mental incapacity, the court has the power to appoint a Committee to manage his finances and affairs under Part II of the MHO. A Committee may be necessary where no EPA has been executed or where the Attorney under an EPA was given insufficient power to manage the MIP’s assets.
In appointing a Committee under Part II of the MHO, the court must be satisfied that a person is, by reason of mental incapacity, unable to manage and administer his property and affairs at the time of application. The applicant must present two recent medical certificates signed by registered medical practitioners, one of which must be from a medical practitioner recognised under section 2(2) of the MHO, certifying his mental incapacity. Since the application under Part II of the MHO is a High Court procedure, one may wish to consider consulting a lawyer with relevant experience.
Special Needs Trust (SNT)
The Special Needs Trust Office was established in December 2018 through which the Director of Social Welfare Incorporated acts as the trustee to manage the assets of deceased parents. Regular disbursements will be made to the carers of their children, who may be individuals or organizations, in accordance with the parents’ wishes to ensure that their assets will be used for meeting the long-term daily needs of their children.