3. Monitoring the attorney

3. Monitoring the attorney

Despite that the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) has prescribed certain statutory duties and liabilities in relation to the attorney, one would certainly ask: “But who is going to monitor the attorney’s acts, as once the attorney starts exercising his/her authority, it means that the donor no longer has the mental capacity to control the attorney?  Even if the attorney abuses his/her authority, what can other people do?”

Section 11(1) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) provides as follows:

“The court may on the application of an interested party- 
(a)     require the attorney under an enduring power to produce records and accounts and make an order for their auditing;
(b)     revoke an enduring power or vary an enduring power; or
(c)     if satisfied that the interests of the donor of an enduring power so require it, remove the attorney.”

An attorney’s acts can therefore be monitored by an 'interested party".  While the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) does not define who can be qualified as an “interested party”, it is believed that the Court will not hesitate to allow a wide interpretation in cases where a mentally incapacitated person’s interest is involved.

Once an EPA is registered with the High Court, the law also allows any person to inspect it and obtain copies of it (section 9(5)(b) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong)).  It will therefore be quite easy for any interested party to ascertain an attorney’s scope of authority under the EPA and decide whether it is necessary to make an application under section 11(1) .