### Enduring Powers of Attorney Ordinance 《持久授權書條例》

3. Characteristics of an enduring power
(1) For the purposes of this Ordinance, a power of attorney is an enduring power of attorney if the instrument which creates the power—
(a) is in the prescribed form;
(b) was executed in the prescribed manner by the donor and the attorney; and
(c) contained at the time of execution by the donor the prescribed explanatory information.
(2) For the purposes of this section—
(a) an instrument in the prescribed form purporting to have been executed in the prescribed manner shall be taken, in the absence of evidence to the contrary, to be a document which incorporated at the time of execution by the donor the prescribed explanatory information; and
(b) where the instrument differs in any respect which is not material in form or mode of expression from that prescribed, it shall be treated as being in the prescribed form.
(3) For the avoidance of doubt it is declared that an instrument which purports to create an enduring power but does not comply with this section cannot take effect as an enduring power.

4. Enduring power to survive mental incapacity of donor
(1) Subject to this section, where an individual creates an enduring power, the power is not revoked by reason of any subsequent mental incapacity of the donor.
(2) If the attorney has reason to believe that the donor is or is becoming mentally incapable he must, as soon as practicable, apply under section 9 for registration of the instrument creating the power.
(3) In the event of the subsequent mental incapacity of the donor, the attorney shall not do anything under the authority of the power unless or until it is registered.
(4) So long as the authority of the attorney to act under the power is suspended by the operation of subsection (3), section 5 of the Powers of Attorney Ordinance (Cap. 31) shall apply (so far as applicable) as if the power had been revoked by the donor’s mental incapacity.
(5) Notwithstanding subsections (3) and (4), where the attorney has applied for registration of the instrument, he may, pending such registration, act under the enduring power—
(a) to maintain the donor or prevent loss to his estate;
(b) to maintain himself or other persons in so far as section 8(3)(b) permits him to do so.
(6) Where the attorney purports to act under subsection (5), then, in favour of any person who deals with him without knowledge that the attorney is acting otherwise than in accordance with paragraph (a) or (b) of that subsection, the transaction between them is valid as if the attorney were acting in accordance with that paragraph (a) or (b).

### Enduring Powers of Attorney Ordinance 《持久授權書條例》

6. Restrictions on being an attorney
A power of attorney cannot be an enduring power unless when he executes the instrument creating it, the attorney—
(a) is an individual who has attained the age of 18 years and is not bankrupt or mentally incapable; or
(b) is a trust corporation.

7. Instruments which cannot be enduring powers
A power of attorney which—
(a) empowers the attorney to appoint another person in substitution for himself or as his successor; or
(b) empowers the attorney to delegate trusts for the purposes of section 27 of the Trustee Ordinance (Cap. 29),
cannot be an enduring power.

8. Scope of authority, etc. of attorney under enduring power
(1) An enduring power—
(a) must not confer on the attorney any authority other than authority to act in relation to the property of the donor and his financial affairs;
(b) subject to paragraph (a), must specify, in accordance with regulations made under section 18, the particular matters, property or affairs in relation to which the attorney has authority to act.
(2) An instrument which purports to create an enduring power which does not comply with subsection (1) cannot take effect as an enduring power.
(3) An attorney may, subject to any conditions and restrictions contained in the enduring power and without obtaining any consent—
(a) (Repealed 13 of 2013 s. 56)(b) act under the power so as to benefit himself and other persons (not being the donor) to the following extent, but no further—
(i) he may so act in relation to himself or in relation to any other person if the donor might be expected to provide for his or that person’s needs respectively; and
(ii) he may do whatever the donor might be expected to do to meet those needs; and
(c) without prejudice to paragraph (b) and subject to subsection (4), dispose of the property of the donor by way of gift to the following extent, but no further—
(i) he may make gifts of a seasonal nature or at a time or on an anniversary of a birth or marriage to persons (including himself) who are related to or connected with the donor; and
(ii) he may make gifts to any charity to which the donor made or might be expected to make gifts.
(4) A gift under subsection (3)(c) must not be unreasonable having regard to all the circumstances, in particular, the donor’s estate.

### Enduring Powers of Attorney Ordinance 《持久授權書條例》

9. Registration and inspection of enduring power
(1) An application to register, for the purposes of section 4(2), an instrument creating an enduring power must be made to the Registrar of the High Court. (Amended 25 of 1998 s. 2)
(2) Where an application is made under subsection (1), the Registrar shall register the instrument concerned, if he is satisfied that the instrument purports to create an enduring power, the requirements in this Ordinance or in any rules relating to the registration of such an instrument have been complied with and the fee payable for such registration has been paid.
(3) The original and a certified copy of any instrument registered under this section must be lodged with the Registrar.
(4) The Registrar shall keep a register of instruments which are registered under this section, in a form approved by the Chief Justice.
(5) The Registrar shall—
(a) have the custody of—
(i) the register kept under subsection (4); and
(ii) any instrument registered under this section; and
(b) allow any person to inspect the register and the instruments during office hours and obtain copies thereof (sealed or otherwise) on payment of the fee payable therefor.
(6) The power to make rules under section 54 of the High Court Ordinance (Cap. 4) includes a power to make rules of court (including rules specifying fees) for the purposes of this section. (Amended 25 of 1998 s. 2)
(7) For the avoidance of doubt it is declared that—
(a) this section shall not be construed as requiring the Registrar to determine the validity of an instrument for the registration of which an application is made under subsection (1); and
(b) registration does not validate an enduring power which is invalid.
Editorial Note:
Please see the Enduring Powers of Attorney (Registration) Rules (Cap. 4 sub. leg. E).