Views are being sought on the Law Reform Commission's proposal to simplify the requirements for executing an enduring power of attorney.

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.

An enduring power of attorney is special. According to the Enduring Powers of Attorney 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.

Requirements simplified

There are no requirements that a conventional power of attorney should be witnessed by a solicitor or a doctor, or, indeed, by anyone at all. In contrast, an enduring power of attorney must be signed in the presence of a solicitor and a medical practitioner.

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 caused by the cumbersome requirement that an enduring power of attorney be executed in the simultaneous presence of a medical practitioner and a solicitor.

The commission presented two options for discussion. The first is to remove the requirement for a medical witness altogether, and the second is to retain the requirement, but to allow the doctor and the solicitor to sign the enduring power of attorney at different times.

The commission also seeks views as to whether consideration should be given to extending the possible scope of enduring powers of attorney to include decisions about the donor's personal care, and whether the existing statutory form of enduring power of attorney should be simplified.

The consultation will run until June 30. For the consultation document details click here.