ENDURING POWERS OF ATTORNEY (PRESCRIBED FORM) REGULATION - CHAPTER 501A ENDURING POWERS OF ATTORNEY (PRESCRIBED FORM) REGULATION - LONG TITLE Empowering section VerDate:30/06/1997 (Cap 501 section 18) [27 June 1997] (L.N. 365 of 1997) (L.N. 271 of 1997) ENDURING POWERS OF ATTORNEY (PRESCRIBED FORM) REGULATION - SECT 1 (Omitted as spent) VerDate:30/06/1997 (Omitted as spent) ENDURING POWERS OF ATTORNEY (PRESCRIBED FORM) REGULATION - SECT 2 Prescribed form VerDate:30/06/1997 (1) Subject to subsections (2) and (3) and sections 3 and 4, an enduring power of attorney- (a) must- (i) be in the form ("the prescribed form") specified in the Schedule; (ii) include all the explanatory information headed "About using this form" in Part A of the Schedule; and (iii) include all the relevant marginal notes to Parts B and C of the Schedule; (b) may include such additions or restrictions as the donor may wish. (2) In complying with the prescribed form- (a) there shall be excluded (either by omission or deletion)- (i) where the donor appoints only one attorney, everything between and including the pair of square brackets in section A of Part B of the Schedule; and (ii) one and only one of any pair of alternatives; (b) there may also be so excluded- (i) in section A of Part B of the Schedule the words "in relation to the following property and affairs", if those words do not apply; (ii) in section B of Part B of the Schedule the words "subject to the following restrictions and conditions", if those words do not apply; and (iii) any marginal notes which correspond with any words excluded under this paragraph and the 2 notes numbered 1 and 2 which appear immediately under the heading to Part C of the Schedule. (3) The form of execution by an attorney may be adapted to provide for execution by a trust corporation. (4) Subject to subsections (1), (2) and (3) and sections 3 and 4, where an instrument which purports to create an enduring power of attorney seeks to exclude the explanatory information referred to in subsection (1)(a)(ii), it is not a valid enduring power of attorney. (5) Without prejudice to subsection (1)(a)(i), an instrument creating an enduring power of attorney must be divided into Parts and sections corresponding to the Parts and sections of the form specified in the Schedule. ENDURING POWERS OF ATTORNEY (PRESCRIBED FORM) REGULATION - SECT 3 Execution VerDate:30/06/1997 (1) An instrument creating an enduring power of attorney must be signed by both the donor and the attorney, although not necessarily at the same time, in accordance with section 5 of the Ordinance and the requirements specified in this section. (2) The- (a) attorney must sign in the presence of a witness, who must sign the instrument and provide, in the appropriate place in the instrument, corresponding to Part C of the Schedule, his full name and address; (b) donor must not witness the signature of the attorney nor one attorney witness the signature of another; (c) solicitor and the registered medical practitioner, who have to certify as to the matters specified in section 5(2)(d) and (e) of the Ordinance respectively, must provide, in the appropriate place in the instrument, corresponding to section B of Part B of the Schedule, their full names and addresses. (3) Where, under section 5(2)(b) of the Ordinance, an instrument creating an enduring power of attorney is signed under the direction of the donor, a statement that the enduring power of attorney has been executed under the direction of the donor must be inserted in the appropriate place in the instrument, corresponding to section B of Part B of the Schedule. (4) The person who signs an instrument referred to in subsection (3) must not be the solicitor or the registered medical practitioner who gives the certificate for the purposes of section 5(2)(d) and (e) of the Ordinance respectively. ENDURING POWERS OF ATTORNEY (PRESCRIBED FORM) REGULATION - SECT 4 Execution where more than one attorney is appointed VerDate:30/06/1997 Where more than one attorney is appointed and they are to act jointly and severally, then at least one of the attorneys so appointed must sign the instrument for it to take effect as an enduring power of attorney, and only those attorneys who have signed the instrument shall have the functions of an attorney under an enduring power of attorney in the event of registration or the donor's mental incapacity, whichever first occurs. ENDURING POWERS OF ATTORNEY (PRESCRIBED FORM) REGULATION - SECT 5 Donor to specify decisions attorney may make VerDate:30/06/1997 (1) This section applies for the purposes of section 8(1) of the Ordinance. (2) The donor must- (a) specify, with reference to the list set out in subsection (3), the matters in which the attorney is given authority to act; or (b) specify the particular property or financial affairs in respect of which the attorney is given such authority. (3) The list for the purposes of subsection (2)(a) is as follows- (a) to collect any income due to the donor; (b) to collect any capital due to the donor; (c) to sell any of the donor's movable property; (d) to sell, lease or surrender the donor's home or any of his immovable property; (e) to spend any of the donor's income; (f) to spend any of the donor's capital; or (g) to exercise any of the donor's powers as a trustee. ENDURING POWERS OF ATTORNEY (PRESCRIBED FORM) REGULATION - SECT 6 Nomination of persons to be notified VerDate:30/06/1997 (1) The donor may, in the appropriate place in the instrument, corresponding to section B of Part B of the Schedule, nominate- (a) himself; (b) in the manner shown in section B of Part B of the Schedule, any attorney who does not join in the application for registration; and (c) a maximum of 2 other persons, to be notified by the attorney before applying for registration. (2) The donor must provide, in the appropriate place in the instrument, corresponding to section B of Part B of the Schedule, the address of any person nominated under subsection (1). (3) Where the donor does not wish to make any nomination under subsection (1), he must make a statement to that effect in the appropriate place in the instrument, corresponding to section B of Part B of the Schedule. ENDURING POWERS OF ATTORNEY (PRESCRIBED FORM) REGULATION - SCHEDULE SCHEDULE VerDate:01/07/1997 Adaptation amendments retroactively made - see 39 of 1999 s. 3 [sections 2, 3 & 6] ENDURING POWER OF ATTORNEY Part A About using this form (Explanatory information referred to in section 2(1)(a)(ii)) 1. You may choose one attorney or more than one. If you choose one attorney then you must omit or delete everything between and including the pair of square brackets in section A of Part B. If you choose more than one, you must decide whether they are able to act- jointly (that is, they must all act together and cannot act separately); or jointly and severally (that is, they can all act together but they can also act separately if they wish). In section A of Part B, show what you have decided by omitting or deleting one of the alternatives. 2. To give a valid enduring power, you must not give your attorney(s) a general power in relation to all your property and financial affairs. You must either specify the matters in which he is given authority to act, with reference to the list set out in section 5(3) of the Enduring Powers of Attorney (Prescribed Form) Regulation (Cap 501 sub. leg.) or the particular property or financial affairs in respect of which he is given authority to act. Failure to do so would mean that the instrument you are about to execute would not take effect as an enduring power of attorney which continues even if you become mentally incapable. 3. You may include any restrictions you like on the powers granted to your attorney. For example, you can include a restriction that your attorney(s) must not act on your behalf until they have reason to believe that you are becoming mentally incapable; or a restriction as to what your attorney(s) may do. Any restrictions you choose must be written or typed in section B of Part B. 4. If you are a trustee, you should seek legal advice if you want your attorney(s) to act as a trustee on your behalf. 5. Unless you put in a restriction preventing it, your attorney(s) will be able to use any of your money or property to make any provision which you yourself might be expected to make for their own needs or the needs of other people. Your attorney(s) will also be able to use your money to make gifts, but only for reasonable amounts in relation to the value of your money and property. 6. Your attorney(s) can recover the out-of-pocket expenses of acting as your attorney(s). If your attorney(s) is or are professional people, for example, solicitor(s) or accountant(s), he or they may be able to charge for his or their professional services as well. You may wish to provide expressly for remuneration of your attorney(s)(although if they are trustees they may not be allowed to accept it). 7. If your attorney(s) has or have reason to believe that you are or are becoming mentally incapable of managing your affairs, your attorney(s) will have to apply to the Registrar of the High Court for registration of this power. 8. You may nominate yourself, any attorney who does not join in the application for registration of the enduring power of attorney and a maximum of 2 other persons to be notified by your attorney(s) before he or they applies or apply to the Registrar of High Court for registration of this power. If you do not make such a nomination, you must make a statement to that effect in this power. If you make such a nomination, the failure (for whatever reason) by your attorney(s) to notify any person so nominated has the following effect- it does not preclude the registration of this power; this power is not invalidated by reason of that failure; in any legal proceedings relating to this power, where it considers it appropriate the court may draw an adverse inference from such failure. 9. This instrument must be signed by you or by another under your direction in the presence of a solicitor and a registered medical practitioner who must certify as to your mental capacity, and by your attorney(s) in the presence of a witness. The person who signs under your direction must not be your attorney, the solicitor who gives the certificate under section 5(2)(d) of the Enduring Powers of Attorney Ordinance (Cap 501) or the medical practitioner who gives the certificate under section 5(2)(e) of that Ordinance or the spouse of the attorney, the solicitor or the medical practitioner. 10. This is a simplified explanation of what the Enduring Powers of Attorney Ordinance (Cap 501) and the Enduring Powers of Attorney (Prescribed Form) Regulation (Cap 501 sub. leg.) say. If you need more guidance, you or your advisers will need to look at that Ordinance and that Regulation. Note to attorney(s) You should note the legal effect (outlined in paragraph 8 above) of any failure on your part to notify the person(s) nominated by the donor in this power. Note to donor Some of these explanatory notes may not apply to the form you are using if it has already been adapted to suit your particular requirements. Part B To be completed by the "donor" (the person appointing the attorney(s)) Don't sign this form unless you understand what it means Please read the notes in the margin which follow and which are part of the form itself. Section A of Part B Donor's name and address. Donor's date of birth. (See paragraph 1 of Part A). If you are appointing only one attorney you should omit or delete everything between and including the square brackets. I, ........................................................................... ...... of ........................................................................... ..... born on ........................................................................ appoint ........................................................................ of ........................................................................... ..... If appointing more than 2 attorneys please give the additional name(s) (that is, of the attorney(s) after the first 2 attorneys) either here or on an attached sheet. [and ........................................................................ of ........................................................................... Omit or delete the one which does not apply (see paragraph 1 of Part A). jointly jointly and severally] List either the matters in which you would like to authorize your attorney(s) to act (see paragraph 2 of Part A) or specify the particular property or financial affairs in respect of which he or they is or are given authority to act. If you do not specify the property and affairs to be covered in your authorization, omit or delete these words (see paragraph 2 of Part A). to be my attorney(s) for the purpose of the Enduring Powers of Attorney Ordinance (Cap 501) with authority to do the following on my behalf: in relation to the following property and affairs: Part B: continued Please read the notes in the margin which follow and which are part of the form itself. Section B of Part B If there are restrictions or conditions, insert them here; if not, omit or delete these words if you wish (see paragraph 3 of Part A). subject to the following restrictions and conditions: You may nominate yourself, any attorney(s) who does or do not join in the application for registration and a maximum of 2 other persons to be notified by your attorney(s) before he or they applies or apply for the registration of this power. I intend that this power shall continue even if I become mentally incapable I hereby nominate the following person(s) to be notified by my attorney(s) before he or they applies or apply for registration of this power. Myself This applies only where you appoint more than one attorney. (Address) Full name and address of attorneys (Only any attorney(s) who does or do not join in the application for registration need be notified) Full name and address of other nominee(s) If you do not make such a nomination, you must make a statement to the effect that you do not propose to make such a nomination. Omit or delete the one which does not apply (see paragraph 8 of Part A). I do not propose to nominate any person to be notified by my attorney(s) before he or they applies or apply for registration of this power. I have read or have had read to me the notes in Part A which are part of, and explain, this form. If this form is being signed under your direction- the person signing must not be an attorney, the solicitor or the registered medical practitioner who gives the certificate under section 5(2)(d) and (e) of the Enduring Powers of Attorney Ordinance (Cap 501), or the spouse of the attorney, solicitor or medical practitioner. You must add a statement that this form has been signed under your direction. Your signature. Date. This power must be signed by you or under your direction in the presence of a solicitor and a registered medical practitioner who must both be present at the same time. Neither of them must be your attorney, the spouse of the attorney or be related by blood or marriage to you or to the attorney. The solicitor and the registered medical practitioner must each give a certificate as required by section 5(2)(d) and (e) of the Enduring Powers of Attorney Ordinance (Cap 501) respectively. Signed by me as a deed ................................................ and delivered on ........................................................... in the presence of ........................................................ Full name and address of solicitor Certificate by solicitor In the presence of ........................................................ Full name and address of registered medical practitioner Certificate by registered medical practitioner Part C: to be completed by the attorney(s) Note: 1. This form may be adapted to provide for execution by a corporation. 2. If there is more than one attorney, additional sheets in the form as shown below must be added to this Part. Please read the notes in the margin which follow and which are part of the form itself. Do not sign this form before the donor has signed Part B or if, in your opinion, the donor was already mentally incapable at the time of signing Part B. I understand that I have a duty to apply to the Registrar of the High Court for the registration of this form under the Enduring Powers of Attorney Ordinance (Cap 501) when the donor is or is becoming mentally incapable. I also understand my limited power to use the donor's property to benefit persons other than the donor as provided in section 8(3) and (4) of that Ordinance and also my duties and liabilities under section 12 of that Ordinance I am not a minor Signature of attorney. Date. Signature of witness. The attorney must sign this form and his signature must be witnessed. The donor may not be the witness and one attorney may not witness the signature of the other. Signed by me as a deed ................................................... and delivered on .............................................................. in the presence of ........................................................... Full name of witness ....................................................... Address of witness ......................................................... .......................................................... .......................................................... (39 of 1999 s. 3) ENDURING POWERS OF ATTORNEY (PRESCRIBED FORM) REGULATION - SCHEDULE SCHEDULE VerDate:30/06/1997 [sections 2, 3 & 6] ENDURING POWER OF ATTORNEY Part A About using this form (Explanatory information referred to in section 2(1)(a)(ii)) 1. You may choose one attorney or more than one. If you choose one attorney then you must omit or delete everything between and including the pair of square brackets in section A of Part B. If you choose more than one, you must decide whether they are able to act- jointly (that is, they must all act together and cannot act separately); or jointly and severally (that is, they can all act together but they can also act separately if they wish). In section A of Part B, show what you have decided by omitting or deleting one of the alternatives. 2. To give a valid enduring power, you must not give your attorney(s) a general power in relation to all your property and financial affairs. You must either specify the matters in which he is given authority to act, with reference to the list set out in section 5(3) of the Enduring Powers of Attorney (Prescribed Form) Regulation (Cap 501 sub. leg.) or the particular property or financial affairs in respect of which he is given authority to act. Failure to do so would mean that the instrument you are about to execute would not take effect as an enduring power of attorney which continues even if you become mentally incapable. 3. You may include any restrictions you like on the powers granted to your attorney. For example, you can include a restriction that your attorney(s) must not act on your behalf until they have reason to believe that you are becoming mentally incapable; or a restriction as to what your attorney(s) may do. Any restrictions you choose must be written or typed in section B of Part B. 4. If you are a trustee, you should seek legal advice if you want your attorney(s) to act as a trustee on your behalf. 5. Unless you put in a restriction preventing it, your attorney(s) will be able to use any of your money or property to make any provision which you yourself might be expected to make for their own needs or the needs of other people. Your attorney(s) will also be able to use your money to make gifts, but only for reasonable amounts in relation to the value of your money and property. 6. Your attorney(s) can recover the out-of-pocket expenses of acting as your attorney(s). If your attorney(s) is or are professional people, for example, solicitor(s) or accountant(s), he or they may be able to charge for his or their professional services as well. You may wish to provide expressly for remuneration of your attorney(s)(although if they are trustees they may not be allowed to accept it). 7. If your attorney(s) has or have reason to believe that you are or are becoming mentally incapable of managing your affairs, your attorney(s) will have to apply to the Registrar of the Supreme Court for registration of this power. 8. You may nominate yourself, any attorney who does not join in the application for registration of the enduring power of attorney and a maximum of 2 other persons to be notified by your attorney(s) before he or they applies or apply to the Registrar of Supreme Court for registration of this power. If you do not make such a nomination, you must make a statement to that effect in this power. If you make such a nomination, the failure (for whatever reason) by your attorney(s) to notify any person so nominated has the following effect- it does not preclude the registration of this power; this power is not invalidated by reason of that failure; in any legal proceedings relating to this power, where it considers it appropriate the court may draw an adverse inference from such failure. 9. This instrument must be signed by you or by another under your direction in the presence of a solicitor and a registered medical practitioner who must certify as to your mental capacity, and by your attorney(s) in the presence of a witness. The person who signs under your direction must not be your attorney, the solicitor who gives the certificate under section 5(2)(d) of the Enduring Powers of Attorney Ordinance (Cap 501) or the medical practitioner who gives the certificate under section 5(2)(e) of that Ordinance or the spouse of the attorney, the solicitor or the medical practitioner. 10. This is a simplified explanation of what the Enduring Powers of Attorney Ordinance (Cap 501) and the Enduring Powers of Attorney (Prescribed Form) Regulation (Cap 501 sub. leg.) say. If you need more guidance, you or your advisers will need to look at that Ordinance and that Regulation. Note to attorney(s) You should note the legal effect (outlined in paragraph 8 above) of any failure on your part to notify the person(s) nominated by the donor in this power. Note to donor Some of these explanatory notes may not apply to the form you are using if it has already been adapted to suit your particular requirements. Part B To be completed by the "donor" (the person appointing the attorney(s)) Don't sign this form unless you understand what it means Please read the notes in the margin which follow and which are part of the form itself. Section A of Part B Donor's name and address. Donor's date of birth. (See paragraph 1 of Part A). If you are appointing only one attorney you should omit or delete everything between and including the square brackets. I, ........................................................................... ...... of ........................................................................... ..... born on ........................................................................ appoint ........................................................................ of ........................................................................... ..... If appointing more than 2 attorneys please give the additional name(s) (that is, of the attorney(s) after the first 2 attorneys) either here or on an attached sheet. [and ........................................................................ of ........................................................................... Omit or delete the one which does not apply (see paragraph 1 of Part A). jointly jointly and severally] List either the matters in which you would like to authorize your attorney(s) to act (see paragraph 2 of Part A) or specify the particular property or financial affairs in respect of which he or they is or are given authority to act. If you do not specify the property and affairs to be covered in your authorization, omit or delete these words (see paragraph 2 of Part A). to be my attorney(s) for the purpose of the Enduring Powers of Attorney Ordinance (Cap 501) with authority to do the following on my behalf: in relation to the following property and affairs: Part B: continued Please read the notes in the margin which follow and which are part of the form itself. Section B of Part B If there are restrictions or conditions, insert them here; if not, omit or delete these words if you wish (see paragraph 3 of Part A). subject to the following restrictions and conditions: You may nominate yourself, any attorney(s) who does or do not join in the application for registration and a maximum of 2 other persons to be notified by your attorney(s) before he or they applies or apply for the registration of this power. I intend that this power shall continue even if I become mentally incapable I hereby nominate the following person(s) to be notified by my attorney(s) before he or they applies or apply for registration of this power. Myself This applies only where you appoint more than one attorney. (Address) Full name and address of attorneys (Only any attorney(s) who does or do not join in the application for registration need be notified) Full name and address of other nominee(s) If you do not make such a nomination, you must make a statement to the effect that you do not propose to make such a nomination. Omit or delete the one which does not apply (see paragraph 8 of Part A). I do not propose to nominate any person to be notified by my attorney(s) before he or they applies or apply for registration of this power. I have read or have had read to me the notes in Part A which are part of, and explain, this form. If this form is being signed under your direction- the person signing must not be an attorney, the solicitor or the registered medical practitioner who gives the certificate under section 5(2)(d) and (e) of the Enduring Powers of Attorney Ordinance (Cap 501), or the spouse of the attorney, solicitor or medical practitioner. You must add a statement that this form has been signed under your direction. Your signature. Date. This power must be signed by you or under your direction in the presence of a solicitor and a registered medical practitioner who must both be present at the same time. Neither of them must be your attorney, the spouse of the attorney or be related by blood or marriage to you or to the attorney. The solicitor and the registered medical practitioner must each give a certificate as required by section 5(2)(d) and (e) of the Enduring Powers of Attorney Ordinance (Cap 501) respectively. Signed by me as a deed ................................................ and delivered on ........................................................... in the presence of ........................................................ Full name and address of solicitor Certificate by solicitor In the presence of ........................................................ Full name and address of registered medical practitioner Certificate by registered medical practitioner Part C: to be completed by the attorney(s) Note: 1. This form may be adapted to provide for execution by a corporation. 2. If there is more than one attorney, additional sheets in the form as shown below must be added to this Part. Please read the notes in the margin which follow and which are part of the form itself. Do not sign this form before the donor has signed Part B or if, in your opinion, the donor was already mentally incapable at the time of signing Part B. I understand that I have a duty to apply to the Registrar of the Supreme Court for the registration of this form under the Enduring Powers of Attorney Ordinance (Cap 501) when the donor is or is becoming mentally incapable. I also understand my limited power to use the donor's property to benefit persons other than the donor as provided in section 8(3) and (4) of that Ordinance and also my duties and liabilities under section 12 of that Ordinance I am not a minor Signature of attorney. Date. Signature of witness. The attorney must sign this form and his signature must be witnessed. The donor may not be the witness and one attorney may not witness the signature of the other. Signed by me as a deed ................................................... and delivered on .............................................................. in the presence of ........................................................... Full name of witness ....................................................... Address of witness ......................................................... .......................................................... ..........................................................