b. Revocation under other circumstances
Apart from a revocation initiated by the donor, there are other circumstances which may render an EPA automatically revoked. They are:
- An EPA will be revoked on the bankruptcy of the attorney. The basic idea is: if the attorney cannot manage his/her own financial affairs, how can he/she be expected to be capable of managing the donor’s? The automatic revocation under this circumstance is therefore very reasonable.
- An EPA will be revoked if the Court makes an order under section 11(1)(b) or section 11(1)(c) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong) to revoke an EPA or to remove the attorney. These sections will be triggered when the Court finds an EPA defective, or when it finds the attorney acting in breach of his duties. Under either of these circumstances, the revocation of the subject EPA is a logical consequence.
- An EPA will be revoked on the appointment of a committee under Part II of the Mental Health Ordinance(Cap.136 of the Laws of Hong Kong). As discussed above, an EPA deals only with financial matters. It does not touch on decisions regarding the personal affairs of the donor, for example medical treatment and residence. On the other hand, Part II of the Mental Health Ordinance (Cap.136 of the Laws of Hong Kong) gives an appointed committee the wide power to do “all such things in relation to the property and affairs of the mentally incapacitated person” (section 11). The appointment of a committee will therefore annul the necessity of the attorney under an EPA.
- An EPA will be revoked on the death of the donor. The underlying essence of an EPA is the maintenance and management of the donor’s assets while he/she is mentally incapacitated. If the donor passes away, the attorney no longer has the duties nor the legal authority to deal with those assets which will be governed by the donor’s Will (if any) or the laws on intestacy.
- An EPA will be revoked on the death of the attorney. The attorney’s death is fatal to the operation of an EPA because an EPA represents the donor’s personal trust and confidence in the attorney. When the object of such trust and confidence has passed away, the EPA naturally has to cease to be operative.
An EPA may also be revoked on any grounds on which a power of attorney is revoked under common law (see section 13(g) of the Enduring Powers of Attorney Ordinance (Cap.501 of the Laws of Hong Kong)). The usual and recognized common law grounds on which a power of attorney will be revoked are: the death, lunacy and bankruptcy of the donor.
- The consequence of a donor’s death is discussed above.
- As for lunacy, if we equate lunacy with mental incapacity, lunacy will actually activate an EPA instead of revoking it. However, if a committee is appointed under Part II of the Mental Health Ordinance (Cap.136 of the Laws of Hong Kong) to take care of the property and affairs of a donor who has become mentally incapacitated, it would have the effect of automatically revoking that donor's EPA.
- If the donor is bankrupt, his/her assets will be taken up by the liquidator for the satisfaction of his/her debts. An EPA made by the donor will therefore be meaningless and should be revoked.