The Law Reform Commission has proposed removing the existing requirement in the Enduring Powers of Attorney Ordinance that an enduring power of attorney be signed before a registered medical practitioner.

In its report published today, the commission said a power of attorney is a legal instrument which enables the donor of the power to give legal authority to other people to make property, financial and other legal decisions on his behalf.

A conventional power of attorney can only be made by a person who is mentally competent, and any such power of attorney will lapse if the donor subsequently becomes mentally incompetent.

Cumbersome requirement

An enduring power of attorney is special. According to the ordinance, such power is executed while the donor is mentally capable but will continue to have effect after the donor becomes incapable.

An enduring power of attorney can apply only to decisions about the donor's property and financial affairs and cannot be used to delegate decisions about the donor's healthcare.

Since the ordinance came into effect on July 1, 1997, only a handful of enduring powers of attorney have been registered. The low take-up rate may be the result of the cumbersome requirement that an enduring power of attorney be executed in the presence of a medical practitioner and a solicitor at the same time.

After considering the views received during a public consultation last year, the commission suggested abolishing the requirement for a medical witness.

Clearer directions

It said the Law Society should be encouraged to issue practice directions to its members on the execution of enduring power of attorney, making clear that where a solicitor has grounds for doubting the mental competence of his client to execute an enduring power of attorney, the solicitor must obtain an assessment of his client's mental capacity from a medical practitioner before the enduring power of attorney is executed.

If the Government decides to keep the requirement for a medical witness, the donor and solicitor should be permitted to sign the enduring power of attorney within 28 days after it has been signed by the registered medical practitioner.

The commission also feeks greater publicity should be given to the concept of enduring power of attorney, both within the legal profession and the wider community.

The report also suggests a simplified version of the existing statutory form of enduring power of attorney.