To make new provision in relation to powers of attorney and for matters connected therewith.
[1 October 1972] L.N. 176 of 1972
(Format changes—E.R. 3 of 2018)
This Ordinance may be cited as the Powers of Attorney Ordinance.
A person shall be regarded as being mentally incapable or suffering from mental incapacity for any purpose relating to a power of attorney for which the fact that a person is mentally incapable or is suffering from mental incapacity is relevant, if—
he is suffering from mental disorder or mental handicap and—
is unable to understand the effect of the power of attorney; or
is unable by reason of his mental disorder or mental handicap to make a decision to grant a power of attorney; or
he is unable to communicate to any other person who has made a reasonable effort to understand him, any intention or wish to grant a power of attorney.
(Added 18 of 1997 s. 2. Amended 81 of 1997 s. 59)
An instrument creating a power of attorney shall be signed and sealed by, or by direction and in the presence of, the donor of the power.
Where such an instrument is signed and sealed by a person by direction and in the presence of the donor of the power, two other persons shall be present as witnesses and shall attest the instrument.
This section is without prejudice to any requirement in, or having effect under, any other Ordinance as to the witnessing of instruments creating powers of attorney and does not affect the rules relating to the execution of instruments by corporations.
[cf. 1971 c. 27 s. 1 U.K.]
The contents of an instrument creating a power of attorney may be proved by means of a copy which—
is a reproduction of the original made with a photographic or other device for reproducing documents in facsimile; and
contains the following certificate or certificates signed by the donor of the power or by a solicitor, that is to say—
a certificate at the end to the effect that the copy is a true and complete copy of the original; and
if the original consists of two or more pages, a certificate at the end of each page of the copy to the effect that it is a true and complete copy of the corresponding page of the original.
Where a copy of an instrument creating a power of attorney has been made which complies with subsection (1), the contents of the instrument may also be proved by means of a copy of that copy if the further copy itself complies with that subsection, taking references in it to the original as references to the copy from which the further copy is made.
In favour of a person acting in good faith a signature on a certificate under subsection (1)(b) purporting to be that of a person described as being a solicitor shall, until the contrary is proved, be deemed sufficient for the purposes of this section.
This section is without prejudice to any other method of proof authorized by any other Ordinance.
[cf. 1971 c. 27 s. 3 U.K.]
Where a power of attorney is expressed to be irrevocable and is given to secure—
a proprietary interest of the donee of the power; or
the performance of an obligation owed to the donee,
then, so long as the donee has that interest or the obligation remains undischarged, the power shall not be revoked—
by the donor without the consent of the donee; or
by the death, incapacity or bankruptcy of the donor or, if the donor is a corporation, by its winding up or dissolution.
A power of attorney given to secure a proprietary interest may be given to the person entitled to the interest and persons deriving title under him to that interest, and those persons shall be duly constituted donees of the power for all purposes of the power but without prejudice to any right to appoint substitutes given by the power.
This section applies to powers of attorney whenever created.
[cf. 1971 c. 27 s. 4 U.K.]
A donee of a power of attorney who acts in pursuance of the power at a time when it has been revoked shall not, by reason of the revocation, incur any liability (either to the donor or to any other person) if at that time he did not know that the power had been revoked.
Where a power of attorney has been revoked and a person, without knowledge of the revocation, deals with the donee of the power, the transaction between them shall, in favour of that person, be as valid as if the power had then been in existence.
Where the power is expressed in the instrument creating it to be irrevocable and to be given by way of security then, unless the person dealing with the donee knows that it was not in fact given by way of security, he shall be entitled to assume that the power is incapable of revocation except by the donor acting with the consent of the donee and shall accordingly be treated for the purposes of subsection (2) as having knowledge of the revocation only if he knows that it has been revoked in that manner.
Where the interest of a purchaser depends on whether a transaction between the donee of a power of attorney and another person was valid by virtue of subsection (2), it shall be conclusively presumed in favour of the purchaser that that person did not at the material time know of the revocation of the power if—
the transaction between that person and the donee was completed within 12 months of the date on which the power came into operation; or
that person makes a statutory declaration, before or within 3 months after the completion of the purchase, that he did not at the material time know of the revocation of the power. (Amended E.R. 3 of 2018)
Without prejudice to subsection (3), for the purposes of this section knowledge of the revocation of a power of attorney includes knowledge of the occurrence of any event (such as the death of the donor) which has the effect of revoking the power.
In this section—
purchaser (購買人) means— (a)a purchaser in good faith for valuable consideration; (b)a lessee, mortgagee or other person who for valuable consideration acquires an interest in property; and (c)an intending purchaser; and valuable consideration (有值代價) includes marriage but not a nominal consideration in money.This section applies whenever the power of attorney was created but only to acts and transactions after the commencement@ of this Ordinance.
No statutory declaration relating to a power of attorney made under subsection (4)(b) at any time after the commencement# of the Powers of Attorney (Amendment) Ordinance 1987 (34 of 1987) shall be sufficient if made before—
a solicitor who acted for the declarant or the donee of the power of attorney in the transaction referred to in subsection (2);
a solicitor acting, or who has acted, for a party in any transaction affected by the statutory declaration;
a partner, clerk or employee of a solicitor mentioned in paragraph (a) or (b); or
a partner, clerk or employee of a partner of a solicitor mentioned in paragraph (a) or (b). (Added 34 of 1987 s. 2)
For the avoidance of doubt, it is hereby declared that a statutory declaration made under subsection (4)(b) at any time prior to the commencement# of the Powers of Attorney (Amendment) Ordinance 1987 (34 of 1987) shall not be invalid or otherwise ineffective for its purpose solely by reason of the fact that it was made before any solicitor, partner, clerk or employee mentioned in subsection (8). (Added 34 of 1987 s. 2)
[cf. 1971 c. 27 s. 5 U.K.]
| @ | Commencement date: 1 October 1972. |
| # | Commencement date: 5 June 1987. |
The donee of a power of attorney may, if he thinks fit—
execute any instrument with his own signature and, where sealing is required, with his own seal; and
do any other thing in his own name,
by the authority of the donor of the power; and any document executed or thing done in that manner shall be as effective as if executed or done by the donee with the signature and seal, or, as the case may be, in the name, of the donor of the power.
For the avoidance of doubt it is hereby declared that an instrument may be executed on behalf of a person by a donee of a power of attorney either as provided in this section or as provided in any other Ordinance.
This section is without prejudice to a provision in any other Ordinance requiring an instrument to be executed by a person specified therein.
This section applies to powers of attorney whenever created.
[cf. 1971 c .27 s. 7 U.K.]
Subject to subsection (2), a general power of attorney in the form set out in the Schedule, or in a form to the like effect but expressed to be made under this Ordinance, shall operate to confer—
on the donee of the power; or
if there is more than one donee, on the donees acting jointly or acting jointly or severally, as the case may be,
authority to do on behalf of the donor anything which he can lawfully do by an attorney.
This section does not apply to functions which the donor has as a trustee or personal representative.
[cf. 1971 c. 27 s. 10 U.K.]
For the avoidance of doubt it is declared that any question relating to the validity or otherwise or revocation of a power of attorney created before the commencement* of the Powers of Attorney (Amendment) Ordinance 1997 (18 of 1997) is to be determined as if that Ordinance had not been enacted.
(Added 18 of 1997 s. 3)
Powers of Attorney Ordinance
(Chapter 31)Form of General Power of Attorney for Purposes of Section 7
This General Power of Attorney is made this day of 19 by AB of (address) .
I appoint CD of (address) [or CD of (address) and EF of (address) jointly or jointly and severally] to be my attorney(s) in accordance with section 7 of the Powers of Attorney Ordinance (Cap. 31).
In witness whereof I have hereunto set my hand and seal.
| (L.S.) |
Signature, etc.
(Amended L.N. 441 of 1995; E.R. 3 of 2018)