b. Certificate by a solicitor
One should note that an EPA has to be signed in the presence of a solicitor, not any lawyer. A solicitor, according to section 3 of the Interpretation and General Clauses Ordinance (Cap.1 of the Laws of Hong Kong), means “a person admitted before the Court of First Instance to practise as a solicitor”. Hence, as only a solicitor admitted (allowed) to practice in Hong Kong fits this criterion; the donor cannot sign the EPA before a barrister or a solicitor from another country.
Section 5(2)(d) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) provides that the solicitor has to certify that “the donor appeared to be mentally capable”. One may ask: how can a solicitor, not being a medical professional, be able to discern whether a donor is “mentally capable”? The gist here is the words “appeared to be”. The solicitor will be required to exercise his/her common sense to verify that the donor appears to be mentally capable. For example, the donor will have to express to the solicitor that he/she is signing the EPA voluntarily or that he/she is directing another person to sign the EPA on his/her behalf. In this process, the solicitor will be able to observe the donor’s actions and behavior. It should not be difficult for the solicitor, though not a medical professional, to discern whether or not the donor “appeared to be mentally capable”.