Enduring Power of Attorney

Hypothetical cases

Case 1: Mr. X

Mr. X, who was 60 years old and financial relatively well-off, began to show signs of memory loss, decreased ability to think, language impairment, inability to recognize relatives, and other indicative signs of dementia. Mrs. X heard about the concept of an EPA and thought that it was a good idea to get Mr. X sign an EPA.  She promptly got a solicitor to advise her on the feasibility of making an EPA for Mr. X. The solicitor told her that since Mr. X already showed signs of dementia, it was perhaps too late to try to do an EPA because Mr. X had to do it while he was still mentally sound.  The solicitor then recommended Mr. and Mrs. X to consult a medical doctor as soon as possible to ascertain Mr. X’s mental status. Mrs. X brought Mr. X to consult a few medical practitioners; and all of them diagnosed Mr. X as suffering from dementia and was no longer mentally capable. Naturally, none of these medical practitioners are prepared to certify on an EPA that Mr. X is mentally capable. Now apart from taking care of Mr. X’s physical well-being, the X family has to face the following financial problems:

  • While the family appears relatively well-off, most of the family assets, including cash in banks and shares in publicly listed companies are held in Mr. X’s sole name.
  • Therefore, Mrs. X is not able to touch or liquidate those assets to cater for the family’s fiscal expenses and Mr. X’s medical expenses.
  • Mr. and Mrs. X have a joint account at a bank, with a balance of several hundred thousand dollars. Mrs. X will be able to withdraw money from this account. But it is expected that the money in this account will be depleted within a few years (or maybe within an even shorter period).
  • Mrs. X will now have to rely on her own savings to support the family.
  • Mrs. X will also have to sell some of her jewellery to get some cash.  Luckily most of her jewellery is kept in a safe deposit box in her own name.
  • Mrs. X understands that Mr. X has kept some rare coins which would worth some money. Those coins were kept in a safe deposit box in Mr. X’s sole name. So again Mrs. X cannot access them. 
  • The most disturbing matter is their son. Mr. and Mrs. X have a son, who unfortunately is a spendthrift and has never had a proper job even though he is already 40 years old. The relationship between the parents and the son is of course bitter. However, since this is their only son, Mr. and Mrs. X still love him and have tolerated him and financially supported him for years. Now Mrs. X is very worried that their son will take advantage of Mr. X’s mental condition by, for instance, taking Mr. X to the bank to withdraw a large sum of money and get the money for himself.

Now, Mrs. X has to engage a lawyer to apply to the Court in order to deal with Mr. X’s property according to the Mental Health Ordinance. The procedure is much more complicated. While waiting for the outcome, Mrs. X keeps worrying all the time.

Evidently, none of the above disastrous events would happen if Mr. X had made an EPA while he was still mentally capable.

Case 2: Ms. Y

Ms. Y made her EPA when she was still mentally capable. Ms. Y’s husband passed away years ago and left her with a reasonably generous estate.  She had 2 sons. The elder one, unfortunately, was a prodigal who had left the family years ago. He broke Ms. Y’s heart so much that she did not consider this man her son anymore. Fortunately Ms. Y’s second son was a man with filial piety; he lived with and took care of Ms. Y who was approaching 70 years old. The second son was also the attorney under the EPA.  The EPA expressly specifies that it would take effect when Ms. Y was diagnosed to be mentally incapable. The EPA also contained sufficiently clear and specific instructions as to how the second son should handle Ms. Y’s property and financial affairs. It also empowered the second son to transfer Ms. Y’s money to his bank accounts set up for the sole purpose of accommodating and administering Ms. Y’s assets. Recently the second son noticed that Ms. Y was showing some obvious signs of dementia. This sad fact was verified by the family’s doctor. The second son took the EPA to his solicitor and sought legal advice. Then: 

  • The solicitor assisted the second son by taking the EPA to the Court for registration.
  • The second son was a righteous man but was not doing very good in his career.  His income barely supported himself and could not maintain Ms. Y’s living standard. Fortunately, pursuant to section 4(5) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong), the second son was able to access Ms. Y’s assets to a certain extent while waiting for the registration of the EPA.
  • Upon the completion of the registration process, the second son was able to gain full access to Ms. Y’s assets. With the assistance of the EPA, he was able to use Ms. Y’s financial resources to take good care of her.
  • Then the elder son appeared after years of disappearance. He asked the second son to give him his “share” in their parents’ fortune.  The second son of course refused.
  • The elder son tried to approach Ms. Y and take advantage of her mental incapacity. Fortunately, as empowered by the EPA, the second son had set up a fresh bank account in his own name, where this bank account was used solely to take up Ms. Y’s money. The second son was also wise enough to have withdrawn all money from Ms. Y’s bank account and transferred the money into this fresh bank account in his name.
  • Even if the elder son took Ms. Y to a bank and tried to withdraw money, there was no money in Ms. Y’s account at all.
  • The second son continued to take good care of Ms. Y.

By comparing Ms. Y’s case with Mr. X’s, one would easily note that the difference is sufficiently evident to necessitate any further explanation. While the word “fortunately” is used a number of times in the above hypothetical case of Ms. Y, it is not fortune which brings forth such a difference.  It is Ms. Y’s good preparation for the future; and the key is the EPA.