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| Project Details |
| Funding Scheme : | General Research Fund | ||||||||||||||||
| Project Number : | 17614318 | ||||||||||||||||
| Project Title(English) : | Legal Reform of Enduring Powers of Attorney: A Comparative Analysis | ||||||||||||||||
| Project Title(Chinese) : | 改革持久授權書：比較法研究 | ||||||||||||||||
| Principal Investigator(English) : | Prof Ho, Lusina Kam Shuen | ||||||||||||||||
| Principal Investigator(Chinese) : | |||||||||||||||||
| Department : | Faculty of Law | ||||||||||||||||
| Institution : | The University of Hong Kong | ||||||||||||||||
| E-mail Address : | lusinaho@hku.hk | ||||||||||||||||
| Tel : | 28592927 | ||||||||||||||||
| Co - Investigator(s) : |
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| Panel : | Humanities, Social Sciences | ||||||||||||||||
| Subject Area : | Social and Behavioural Sciences | ||||||||||||||||
| Exercise Year : | 2018 / 19 | ||||||||||||||||
| Fund Approved : | 434,298 | ||||||||||||||||
| Project Status : | Completed | ||||||||||||||||
| Completion Date : | 28-2-2021 | ||||||||||||||||
| Project Objectives : |
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| Abstract as per original application (English/Chinese): |
我的首要研究目的是設計一個既符合最佳國際慣例，但同時適用於香港等亞洲司法管轄區的社會背景的持久授權書模式。持久授權書（也稱為永久/持續/耐久授權書）允許個人在他們仍然健康的時候任命他們自己選擇的人在他們喪失行為能力時開始管理他們的事務。 該項目特別及時，因為香港政府正在考慮改革其持久授權書法例。該法例在1997年根據在1985年已廢除的英國法例而制定。由於全球社會急速老化，並迫切需要改善與認知障礙者相關的規劃工具，我的研究結果將會在香港及國際層面上有著重大影響 。 我將會進行首個比較英格蘭，愛爾蘭，澳洲（維多利亞和新南威爾士），新加坡和香港的持久授權書的理論，實踐和挑戰的系統性研究。我將針對解決該範疇三個迫切的問題。第一，持久授權雖然為信託和監護提供了一種非正式和可負擔的替代方案，但諷刺地，這些特質同時也令持久授權書容易被濫用成財政剝削的工具。第二，實施適用於香港的“聯合國殘疾人權利公約”（CRPD）第12條所載的支持性決策原則需要龐大的資源，並需要受權人作出重大的承擔。第三，持久授權根據私法概念改編，通常供有資源在法院提起訴訟的商業單位所使用。然而，持久授權中弱勢的授權人在尋求公義時面臨的障礙使其權利顯得不切實際。此問題在注重家庭和諧的亞洲社會尤其嚴重。我的比較研究將更深入地探討受權人與監護人之間相同的作用和角色 。於此同時，為了滿足持久授權在不拘形式的家庭事宜當中，可能需要採取一些預防措施來指導受權人履行他們的職責，並且可能需要將製裁違法行為的權力交給非正式法庭或類似司法機構處理。 我將至少撰寫3篇期刊文章，以發放我的研究成果，以及把一些政策性的文章交給立法者和香港公眾以作參考 。 |
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| Realisation of objectives: | All three objectives as per the original application have been completed in full. Please see below for details. Objective 1: I have conducted a thorough study of the legal rules (i.e. the statutes, subsidiary legislation, and relevant case law) and administrative infrastructure of durable powers of attorney in the jurisdictions selected. In addition, I went beyond the objective to consider government reports, law reform consultation papers, and academic commentary about durable powers in these jurisdictions. In particular, I have conducted a close, comparative analysis of the durable power regimes in Hong Kong and Singapore. Objective 2: Based on examples of international best practice and a close comparative study with Singapore, which is the most similar to Hong Kong in terms of legal tradition and cultural norms, I have made a number of law reform recommendations with respect to a model for durable powers that is suitable to Hong Kong. Specifically, I considered several crucial aspects of the durable power regime, such as the requisite capacity thresholds (in the context of similar significant lifetime decisions such as wills and large lifetime gifts in elder years), formality requirements, prevention of abuse, and administrative implementation. I have proposed a model for assessing the capacity of the donor in order to prevent the execution of durable powers as the result of abuse, undue influence and other forms of exploitation rather than the expression of the autonomous wishes of the donor (see item C.8.2). I have also proposed an appropriate level of formality requirements for durable powers that are more stringent than those in western jurisdictions, but suitable for Hong Kong in safeguarding donors from abuses (item C.8.1). Finally, I have argued that Singapore’s success shows that cultural taboos about incapacity can be overcome by a rigorous public awareness campaign and the adoption of administrative measures to promote the use of durable powers amongst the general population (item C.8.1). Objective 3 I have closely examined the current legal regime in Hong Kong for safeguarding donors from financial abuse through duress and undue influence. Taking into account current legislative measures adopted in Singapore for preventing such abuses as well as the cultural contexts and judicial practices in Hong Kong and Singapore, I have made observations on the ways to strike a balance between over-paternalistic judicial intervention and the prevention of abuse (see item C.8.3). | ||||||||||||||||
| Summary of objectives addressed: |
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| Research Outcome | |||||||||||||||||
| Major findings and research outcome: | I have presented draft papers of the published outputs and parts of my research in London, Singapore, and Seoul, as well as in an online workshop (see items listed in C.9). I have also shared my recommendations with government officers in charge of the law reform process of the regime of enduring powers in Hong Kong. The study has shown that even though Hong Kong has started the process of reforming its regime of enduring powers of attorney, the reform process is very slow and lags behind the monumental advancements that have taken place in other jurisdictions. My research has also shown that despite being a latecomer to the durable power regime, Singapore has surpassed Hong Kong in enacting a modern regime in 2010, and has since then made numerous significant amendments to improve it (see items C.8.1 and C.8.3). It has also demonstrated that cultural taboos do not account for the low uptake of enduring powers in Hong Kong, and that with appropriate institutional measures in implementing the law and promoting durable powers, the general public is receptive to durable powers (item C.8.1). Based on these observations, I have made recommendations on key strategic areas of reform of the durable power regime in Hong Kong and published my proposals internationally and locally (see items listed in C.8) Item C.8.1: Lusina Ho, ‘Durable Powers of Attorney: A Tale of Two Cities’ (2021) 12 Journal of Comparative and International Aging Law & Policy 39 Item C.8.2: Lusina Ho, ‘An Asian Approach to Mental Capacity for Wills and Lasting Powers’ in Richard Nolan, Tang Hang Wu and Yip Man (eds), Trusts and Private Wealth Management: Developments and Directions (Cambridge: CUP, 2021)(forthcoming) Item C.8.3: Lusina Ho, ‘Assessing Capacity for Lifetime and Testamentary Dispositions’ (2021) 51 Hong Kong Law Journal (forthcoming) | ||||||||||||||||
| Potential for further development of the research and the proposed course of action: |
The project has demonstrated at least three important areas for further development. First, the development of measures to facilitate supported decision-making and the need to review substitute decision-making, of which durable powers are an example. Second, the importance of a coherent capacity law, which is currently lacking in Hong Kong. Third, the need to devise practical measures to support the implementation of durable power regimes. In order to pursue further work on these three important aspects, I have teamed up with colleagues in the field of medical law and submitted an application for an RGC Research Impact Fund. The proposed research will collaborate with the College of Psychiatry and has received policy support from the Advisory Committee on Mental Health established by the Hong Kong government. I am glad to report that the application has been shortlisted by the RGC, and hope I will be able to conduct an inter-disciplinary study of the law and bring practical impact to the community. | ||||||||||||||||
| Layman's Summary of Completion Report: | The nature of the research: This project is a doctrinal and comparative research that examines the shortfalls of the current regime of enduring powers of attorney in Hong Kong, and offers recommendations on legal reform. The project conducts a close comparison of the durable power regimes in Hong Kong and Singapore to identify the reasons for the success of the latter system as opposed to that in Hong Kong. The significance and value of the research: With a rapidly ageing population and significantly higher instances of dementia amongst the elder population, Hong Kong faces an urgent and compelling challenge in improving its laws in facilitating people to plan for their incapacity. The current enduring power regime is out-of-date, because it was enacted in 1997 based on an English legislation that was enacted in 1985. It is commendable that the government has begun the process of reforming this regime. Accordingly, this project is very timely and significant in providing research findings and making law reform recommendations that assist the government in the law reform process. Another significance of the project lies in its being the first comprehensive comparative study of the durable power regimes in Singapore and Hong Kong, which have very similar cultures. The research has shown that cultural taboos about incapacity planning can be overcome by a rigorous promotion campaign. The long term value of the research lies in identifying the features of a durable power regime that suits Chinese culture and draws an appropriate balance between respecting the autonomy of the donors and protecting them from financial abuse through the use of durable power instruments. | ||||||||||||||||
| Research Output | |||||||||||||||||
| Peer-reviewed journal publication(s) arising directly from this research project : (* denotes the corresponding author) |
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| Recognized international conference(s) in which paper(s) related to this research project was/were delivered : |
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| Other impact (e.g. award of patents or prizes, collaboration with other research institutions, technology transfer, etc.): |
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| SCREEN ID: SCRRM00542 |