An aging population is a global trend which presents numerous difficulties for society, specifically, how do we protect our elder and more vulnerable citizens?
It has been estimated that 15% of Hong Kong’s population is currently over 65. By 2050 it is estimated that 20% of the global population will be over 80. In Hong Kong, a significant increase in citizens suffering from dementia is also expected – statistics suggest this may be as high as 300,000 sufferers within the next 15 years.
This is a significant challenge for public health and there is concern that specialized day-care centres cannot meet the current demand for places and the question as to who will care for these individuals presents a serious problem for Hong Kong.
Is there adequate legal protection?
In legal terms, protection of our elderly, particularly those suffering from dementia, is lagging behind many other Asian territories such as Macau, Singapore and Japan with outdated legislation regarding mental incapacity.
At present, our laws are contained in a number of different ordinances, whereas in England and Singapore the whole matter of dementia in the elderly and powers of attorney, have been consolidated into one piece of updated legislation (Mental Capacity Act). There is a growing trend for the making of Lasting Powers of Attorney (LPAs) or Enduring Powers of Attorney (EPAs) which enables an individual to have some control over what happens to them in the unfortunate event of becoming mentally incapacitated. If an individual becomes incapacitated without a LPA or an EPA, then an application must be made to appoint a Deputy (in England and Singapore) or a Committee of a Guardian (in Hong Kong) which can be time-consuming and costly.
In Hong Kong the practice of making an LPA or an EPA is not widespread and the procedure for provision under the Mental Health Ordinance outdated and cumbersome. We understand that reform is in the pipeline but the need is urgent in view of the statistics.
In addition, Hong Kong is not a signatory to the Hague Convention on the International Protection of Adults; our courts are unlikely to recognize foreign LPAs and EPAs; there is no recognition of a power of attorney in respect of healthcare and welfare decisions; procedures are expensive under the current legislation and, currently, the family of a mentally incapacitated person (MIP) must petition under the guardian provisions of the Mental Health Ordinance to apply for approximately HK$17,000 per month from his assets to maintain him.
Mental capacity: the procedure and how it compares to laws in other countries
At present, there are two procedures for a mentally incapacitated person, or those caring for him, and these are divided between financial care and physical care. For financial matters, where the elderly person suffering from dementia cannot manage his affairs, an application can be made to the court and a ‘committee’ appointed. The committee will normally be a relative or a member of a profession or the Official Solicitor.
In the reforms in England, there is a significant emphasis on the best interests of the incapacitated person which is absent from the current legislation in Hong Kong. In Hong Kong, the court has significant powers, including the ability to make a new will on behalf of the incapacitated person which is expressly not allowed under the legislation in Singapore and England.
In terms of the welfare of an incapacitated person, an application by a relative, social worker or medical practitioner must be made to the Guardianship Board (consisting of a mixture of medical practitioners and lawyers who have had experience in dealing with or treating incapacitated persons). Although the wishes of the incapacitated person will be ascertained where possible, the guardian, once appointed has significant power over the incapacitated person, including requiring him to reside in a specific place and with power over medical and dental treatment. The guardian can withdraw approximately HK$17,000 per month from his assets to maintain him, which may well be inadequate in many cases.
Most guardians and committees act in the best interests of their relatives or clients but the elderly of Hong Kong are particularly vulnerable pending reform similar to England which provides safeguards for the protection of vulnerable people. In England and Singapore the legal principle that the deputy (guardian or committee in Hong Kong) must act in the best interests of the mentally incapacitated person (or the donor in the case of a power of attorney) is statutory. There is a duty to consider a person’s past and present wishes and feelings, beliefs and values and other factors which they would be likely to consider if they were able to do so, and to allow them to participate as fully as possible. Currently in Hong Kong, decision-making is substituted in favour of the guardian or committee.
Power of Attorney
Enduring Powers of Attorney are advisable to deal with finances. More powers can be given while the donor still has capacity, to a grantee of their choosing. Unfortunately this does not yet stretch to personal welfare in Hong Kong and it is hoped that legislation will address this omission soon.
Enduring Powers of Attorney allow the client to choose who will have access to their assets upon their incapacity. The client can also impose restrictions on the power given. EPAs can avoid expensive court proceedings to appoint a committee after loss of capacity. At present there is limited statutory protection under the current EPA Ordinance. Whereas there are restrictions in England and Singapore on the making of gifts from the donor’s estate, in Hong Kong the attorney can make gifts for reasonable amounts in relation to the value of the doors money and property.
Calls for reform in Hong Kong
Reform would be welcomed, not only to reform the law relating to LPAs and EPAs to make them more useful, broader in scope and modern in approach but also to reform the out of date laws under the Mental Health Ordinance.
In the meantime, the best advice we can give is to at least make a LPA or EPA while in full capacity; this can readily be reviewed as and when the law changes.