Bid to exempt doctors from witness role

PUBLISHED : Thursday, 27 March, 2008, 12:00am
UPDATED : Thursday, 27 March, 2008, 12:00am

A doctor should no longer be required to act as witness when someone signs over control of their interests to another person, the Law Reform Commission has proposed.

In a report released yesterday, the commission also proposed that the government, Law Society and non-governmental organisations promote the use of enduring powers of attorney (EPA).

EPA is a legal instrument that allows a lawyer to act on behalf of a person handing over control of their affairs when that person becomes mentally incompetent.

The Enduring Powers of Attorney Ordinance imposes a strict requirement for the execution of an enduring power of attorney. The person handing over control of their affairs must sign a form in the presence of a solicitor and a doctor unless that person is physically unable to sign.

'Arranging for a solicitor and a doctor to convene at the same time and place would present a costs and logistical problem,' the report said.

This may be why EPA is used so rarely in Hong Kong, it added.

Up to December last year, only 21 EPAs had been registered in Hong Kong in 10 years. In contrast, 19,480 were registered in England and Wales in 2006 alone.

The report noted that few other common-law jurisdictions required a doctor to witness the signing of an EPA.

Using an EPA has benefits not only for people signing over control of their affairs, but for their families. The families might otherwise face considerable difficulties and distress in managing their affairs, the report said.

'From the wider community's point of view, an EPA can avoid the need to apply scarce court resources unnecessarily to the management of an individual's affairs,' the report said. Given these benefits, it was 'clearly undesirable' that the law had been used so rarely.

The commission favours scrapping the requirement for a doctor to witness signings, but says if the requirement is to be retained, a family should have four weeks to obtain a legal witness after getting a doctor to witness the signing of an EPA.

The report is the 21st the commission has issued since the handover. Only four have resulted in legislation.