### Trustee Ordinance 《受託人條例》

40B. Appointment of substitute for incapacitated trustee
(1) This section applies in relation to a trust if—
(a) a trustee, because of mental incapacity as defined by section 2(1) of the Mental Health Ordinance (Cap. 136), is incapable of exercising the trustee’s functions (the incapacitated trustee

40C. Provisions supplementary to sections 40A and 40B
(1) For the purposes of sections 40A and 40B, a direction is given by all the beneficiaries if—
(a) a single direction is jointly given by all of them; or 
(b) in compliance with subsection (2), a direction is given by each of them (whether solely or jointly with one or more, but not all, of the others), 

and none of them by writing withdraws the direction given before it has been complied with. 
(2) If more than one direction is given, each beneficiary must specify for the appointment or retirement the same person or persons.
(3) Section 37(7) (providing for the powers, authorities and discretions of new trustees) applies to a trustee appointed under section 40A or 40B as if the trustee were appointed under section 37.
(Added 13 of 2013 s. 25)

### Trustee Ordinance 《受託人條例》

40D. Application of sections 40A and 40B
(1) Sections 40A and 40B do not apply in relation to a trust if a contrary intention is expressed in the instrument creating the trust or an enactment. 
(2) Sections 40A and 40B do not apply in relation to a trust created before the commencement date# of those sections in so far as provision to the effect that those sections do not apply is made by a deed executed—
(a) if the trust was created by a person who is of full capacity, by that person; or 
(b) if the trust was created by more than one person, by all the persons who are of full capacity. 
(3) A deed executed for the purpose of subsection (2) is irrevocable. 
(4) If a deed is executed for the purpose of subsection (2)—
(a) the deed does not affect anything done before its execution to comply with a direction given under section 40A or 40B; but 
(b) a direction given under section 40A or 40B that has not been complied with before the execution of the deed ceases to have effect. 
(5) Sections 40A and 40B do not apply to the appointment and retirement of a personal representative.
(Added 13 of 2013 s. 25)Editorial Note:
# Commencement date: 1 December 2013.

### Trustee Ordinance 《受託人條例》

41A. Application of Part 4A
(1) Except as otherwise provided in section 41I(6)—
(a) this Part applies in relation to a trust having a sole trustee in the same way as it applies to a trust that has more than one trustee; and 
(b) references to trustees in this Part (except in sections 41C(1) and 41J(6)) include the sole trustee of a trust. 
(2) The powers conferred by this Part are only exercisable by trustees jointly if there is more than one trustee.
(Amended E.R. 2 of 2014)

41B. Power to appoint agents
(1) Subject to the provisions of this Division, the trustees of a trust may authorize a person to exercise one or more of their delegable functions as their agent.
(2) For a trust that is not a charitable trust, the trustees’ delegable functions are any functions of the trustees other than—
(a) a function relating to whether, or in what way, any assets of the trust are to be distributed;
(b) a power to decide whether any fees or other payment due to be made out of the trust funds is to be made out of income or capital of the trust; 
(c) a power to appoint a person to be a trustee of the trust; or 
(d) a power conferred by the instrument creating the trust or an enactment that permits the trustees to delegate any of their functions or to appoint a person to act as a nominee or custodian. 
(3) For a charitable trust, the trustees’ delegable functions are—
(a) a function relating to carrying out a decision that the trustees have taken; 
(b) a function relating to the investment of assets subject to the trust (including, in the case of land held as an investment, managing the land and creating or disposing of an interest in the land); and 
(c) a function relating to the raising of funds for the trust (otherwise than by means of profits of a trade which is an integral part of carrying out the trust’s charitable purpose). 
(4) For the purposes of subsection (3)(c), a trade, whether carried on in Hong Kong or elsewhere, is an integral part of carrying out a trust’s charitable purpose if the profits of the trade are applied solely for the purposes of the trust and either—
(a) the trade is carried on in the course of the actual carrying out of a primary purpose of the trust; or 
(b) the work in connection with the trade is mainly carried out by the beneficiaries of the trust. 

### Trustee Ordinance 《受託人條例》

41C. Persons who may act as agents
(1) Subject to subsection (2), a person whom the trustees may under section 41B authorize to exercise functions as the trustees’ agent includes one or more of the trustees. 
(2) The trustees may not authorize 2 or more persons to exercise the same function unless the persons are to exercise the function jointly. 
(3) The trustees may under section 41B authorize a person to exercise a function as their agent even though the person is also appointed to act as the trustees’ nominee or custodian (whether under section 41G, 41H or 41I or any other power). 

41D. Linked functions, etc.
(1) Subject to subsection (2), a person who is authorized under section 41B to exercise a function as the trustees’ agent is (whatever the terms of agency) subject to any specific duties or restrictions attached to the function. 
(2) A person who is authorized under section 41B to exercise a power which is subject to a requirement to obtain advice is not subject to the requirement if the person is the kind of person from whom it would have been proper for the trustees, in compliance with the requirement, to obtain advice.

41E. Terms of agency
(1) Subject to subsection (2), section 41F(2) and Part 4B (remuneration and expenses), the trustees may under section 41B authorize a person to exercise functions as their agent on the terms as to remuneration and other matters that the trustees may determine. 
(2) The trustees may not under section 41B authorize a person to exercise functions as their agent on any of the terms mentioned in subsection (3) unless it is reasonably necessary for them to do so. 
(3) The terms are—
(a) a term permitting the agent to sub-delegate the trustees’ powers or functions to a delegate of the agent; 
(b) a term restricting the liability of the agent, or a delegate of the agent, to the trustees or to any beneficiary; and
(c) a term permitting the agent to act in circumstances capable of giving rise to a conflict of interest. 
(Amended E.R. 2 of 2014)

41F. Special restrictions relating to asset management
(1) The trustees may not under section 41B authorize a person to exercise any of their asset management functions as their agent except by an agreement made, or evidenced, in writing. 
(2) In addition, the trustees may not under section 41B authorize a person to exercise any of their asset management functions as their agent unless—
(a) the trustees have provided that person with a statement that gives guidance as to how the functions are to be exercised (policy statement