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Why a Living Will?

As we all know, a traditional Will is usually prepared to give instructions as to how to deal with one's assets upon death.   While such a Will only takes effect after a person has passed away, a living Will or an Enduring Powers of Attorney on the other hand takes care of a person's assets and affairs when one is at his or her last stage of life journey and when one is still alive.  With the increasing awareness of dementia and its impact on family members, it becomes more pressing to make good preparation for the limbo between aging and death!  

The instrument is a legal document which allows a person to appoint someone as his attorney to take care of his or her financial matters in the event that he or she subsequently becomes mentally incapacitated and do so while he or she is still mentally capable. 

Who can be the Attorney? 

The attorney has to be an individual who has attained the age of 18 years and is not a bankrupt or mentally incapable at the time when he or she executes the instrument or a trust corporation.

Registration of the Instrument

An attorney is barred from dealing with the donor's assets before completion of the registration process.  The Registrar of the High Court of Hong Kong administers the registration system and ensures that a register of every such instrument in force is kept with the Court, which in turn allows the public to inspect and thus monitor the attorney's activity. 

An attorney must apply for registration of the instrument upon the donor becoming mentally incapable or the donor may choose to apply for registration soon after signing the document while he or she is mentally capable.  Such early registration will have the benefit of allowing the attorney to start administering the assets soon upon occurrence of the mental incapacity of the donor without having to wait for the completion of the registration.

To give comfort to the donor, regulation does allow the donor to specify in the instrument that the attorney must notify the donor, the other attorney if more than one is appointed and/or up to 2 persons before applying for registration.

Once the document is registered, its revocation would require a court order following an application by or on behalf of the donor.

Format and Signatures

In order to have legal effect, the instrument must be executed in prescribed manner with prescribed format. 

The donor has to sign it before a registered medical practitioner and a solicitor. If not signed at the same time, the donor can sign in the presence of a solicitor within 28 days after signing in the presence of the registered medical practitioner. An attorney also has to sign to indicate his or her willingness to act in the presence of a witness.

 

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S. W. Wong & Associates

16/F Emperor Commercial Centre, 39 Des Voeux Road Central, Central, Hong Kong
Tel : (852) 2523 8983     Fax : (852) 2121 1449   Email: enquiry@livingwill.com.hk