Powers of Attorney Hong Kong
In Hong Kong, a Power of Attorney (POA) is a legal document that lets someone (the donor) appoint another person (the attorney) to act on their behalf.
Different Types of Power of Attorney
There are different types of Power of Attorney (POA) in Hong Kong. Here's a breakdown of the common ones:
General Power of Attorney (GPOA): This grants the attorney broad authority to handle a wide range of matters on the donor's behalf, often related to financial affairs. It's useful for short-term situations, like when you're traveling. But, a GPOA automatically revokes if the donor becomes mentally incapable.
Enduring Power of Attorney (EPA): This is specifically designed to continue to be effective even if the donor loses mental capacity. An EPA lets the donor choose someone to manage their property and financial affairs in the future, if needed. An EPOA is registered with the High Court and can be used for financial and property matters.
Special or Limited Power of Attorney (SPOA): This limits the attorney's authority to specific tasks or situations or a defined period. This can be for things like selling a property, managing a bank account, or making medical decisions. Unlike a GPOA, a Specific POA can be drafted to be durable (remain valid if you become incapacitated).
Here's an additional wrinkle you might encounter in Hong Kong:
Springing Power of Attorney: This POA becomes active only upon a specific event, such as you becoming incapacitated or at a future date. While not as common, it can be a helpful tool for specific situations.
Choosing the right POA in Hong Kong depends on your needs. If you need someone to handle your affairs temporarily, a Specific POA might suffice. But for long-term planning and ensuring someone can manage things if you can't, an Enduring POA is crucial.
Signing a Power of Attorney
In Hong Kong, the person who signs a Power of Attorney is called the "donor" or "principal." To have a valid POA, the donor must meet these criteria:
Age of majority: The donor must be 18 years old or above.
Mental capacity: The donor needs to be mentally sound and understand the implications of signing the POA. This is particularly important for an Enduring Power of Attorney (EPOA) where a medical practitioner may be involved to certify the mental capacity of the donor.
There are also formalities around witnessing the signing of the POA, which can vary depending on the type of POA. It's advisable to consult a lawyer in Hong Kong to ensure your POA is drafted and executed correctly.
Revoking or Modifying a Will with a Power of Attorney
Someone with a Power of Attorney (POA), even an Enduring Power of Attorney (EPOA), cannot revoke or modify a Will in Hong Kong. Here's the breakdown:
Separate Documents: A Will and a POA are distinct legal documents serving different purposes. A Will dictates how your assets are distributed after your death, while a POA grants someone authority to manage your affairs while you're alive (or incapacitated for an EPOA).
Testator's Authority: Only the person who creates the Will (the testator) has the power to revoke or modify it. An attorney appointed through a POA cannot override the testator's wishes expressed in a valid Will.
If you want to change your Will after appointing an attorney, you'll need to do so yourself while you have the mental capacity. This highlights the importance of keeping your Will updated to reflect your current wishes.
Bank or Financial Institution Honouring a Power of Attorney
A bank or financial institution in Hong Kong can refuse to honour a Power of Attorney (POA), even an Enduring Power of Attorney (EPOA), under certain circumstances. Here are some reasons why:
Validity Concerns: The bank may have doubts about the POA's validity. This could be due to issues like:
Improper Format: The POA might not be drafted according to the legal requirements in Hong Kong.
Questionable Witnessing: The witnessing process for the POA might not have been followed correctly.
Expired POA: Some POAs have expiry dates, and the bank may refuse an outdated document.
Lack of Registration (For EPOA): An EPOA needs to be registered with the High Court to be fully effective. An unregistered EPOA may not be accepted by the bank, especially if the donor lacks mental capacity.
Suspicious Activity: If the bank suspects the attorney is misusing the POA or there's potential fraud, they may refuse to act on it until the situation is clarified.
Unclear Scope of Authority: The POA might not clearly define the attorney's power regarding specific financial actions. This ambiguity can lead the bank to err on the side of caution and refuse the transaction.
It's important to note that:
Banks typically have internal policies and procedures for handling POAs. These can vary from institution to institution.
In case of refusal, the bank should explain the reasons for their decision.
Here are some tips to avoid problems:
Consult a lawyer in Hong Kong to ensure your POA is drafted and executed correctly.
Register your EPOA with the High Court.
Choose a trustworthy attorney and clearly define their powers within the POA document.
If the bank refuses your POA, discuss the reasons with them and consider seeking legal advice if necessary.
Here are some resources for learning more about Powers of Attorney in Hong Kong:
The Hong Kong Department of Justice has information on Enduring Powers of Attorney [Archive - Enduring Powers of Attorney - Department of Justice ON Hong Kong Government]
How Bestar's Partnered Lawyer can Help
How Bestar's Partnered Lawyer can help with Powers of Attorney in Hong Kong:
Drafting and executing Powers of Attorney documents to ensure they are legally sound and enforceable
Advising on the different types of Powers of Attorney available and which one is most suitable for the client's needs
Assisting with the registration of Powers of Attorney if required
Providing guidance on the powers that can be granted under a Power of Attorney
Representing clients in disputes relating to Powers of Attorney
Contact Bestar's Partnered Lawyer or search online for more information about the services they offer.
Comments