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Will, Enduring Power of Attorney and Advance Medical Directive
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Will
A valid will reflects the testator’s lawful intentions. The testator must have sufficient mental capacity to sign the will and must understand and agree to its contents and the possible consequences after it is made.
When giving instructions and making a will, it is advisable to engage a psychiatrist to assess the testator’s mental capacity and confirm that the testator has sufficient mental capacity, legal capacity, and sound mind.
Enduring Power of Attorney , EPA
The donor must sign in the presence of a registered doctor and a solicitor, or sign before a registered doctor first and then sign again before a solicitor within 28 days. A psychiatrist will assess the donor’s mental capacity and confirm that the donor has sufficient mental capacity and legal capacity.
An Enduring Power of Attorney is especially important for older adults who have had a stroke, are affected by mental illness, or live with dementia. It allows the donor, while still mentally capable, to appoint an attorney who can continue to manage the donor’s property and affairs if the donor later loses mental capacity.
Advance Directive , AD
When signing an Advance Directive form, it must be signed by the patient and two witnesses, one of whom must be a registered doctor in Hong Kong.
An Advance Directive allows a patient, while mentally competent, to express their wishes in advance to family members and healthcare professionals, and to state whether they would accept or refuse medical procedures and life-sustaining treatment in the event of a sudden illness, irreversible condition, coma, or other circumstances where they are no longer able to make treatment decisions.
Benefit
It helps relieve the emotional burden on family members who may otherwise have to make difficult decisions on the patient’s behalf, while also respecting the patient’s previously stated wishes. If the patient changes their mind after making an Advance Directive, the document may be amended or revoked.
*Hospital Authority patients may download the standard Advance Medical Directive form from the Hospital Authority website.
Q&A
about Will-Making, EPA and Advance Medical Directives
Q1:
Is it always necessary to engage a psychiatrist to prepare a mental capacity report when making a will ?
Ans:
For testators who are of advanced age, have had a stroke, suffer from Alzheimer’s disease, brain tumours, or other conditions that may affect mental status, it is generally advisable to engage a psychiatrist when making a will, so that their testamentary capacity can be assessed and confirmed.
Q2:
Does a testator have to see a psychiatrist for a mental capacity assessment?
Ans:
Not necessarily. However, since there have been inheritance disputes challenging whether a doctor was properly qualified to confirm a person’s mental capacity at the time, it is generally more prudent to arrange a psychiatric assessment when making a will.
Q3:
Why is it best to have a solicitor and a doctor witness the signing of the “Three Instruments of Peace”?
Ans:
A solicitor can provide legal advice, handle the paperwork, and submit the registration application to the High Court on the donor’s behalf. A doctor can carry out a one-to-one mental capacity assessment for elderly individuals or those in need, and provide a record report to strengthen the legal validity of the documents.
Q4:
Who can make an Advance Directive?
Ans:
An Advance Directive may be made by a person who is 18 years of age or older and has the mental capacity to make medical decisions. If a person lacks the mental capacity to make such decisions, a psychiatric assessment should be arranged in advance. The patient should also discuss the matter with family members, the attending doctor, or healthcare professionals beforehand.
Q5:
What is the procedure for making an Enduring Power of Attorney?
Ans:
Whether the donor has the mental capacity to act properly at the time is the key issue in making an Enduring Power of Attorney. In general, it is advisable to first have a doctor confirm that the donor’s mental capacity is in order, and to sign the Enduring Power of Attorney in the doctor’s presence.
The document should then be taken to a solicitor within 28 days for completion and witnessing, so that the process can be properly finalized.
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