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The Three Instruments of Peace Simplified
28 6月 2024
Similar to other major advanced metropolitan areas, Hong Kong is facing an aging population. As of 2021, the median age of Hong Kong’s population was 46.31. According to the Census and Statistics Department’s population projection, the percentage of elderly persons aged 65 and above in the population will gradually increase from 20.8% in mid-2022 to 25.3% in 2028, and then to 35.1% in 20692. The continued rise in the number of seniors therefore increases the demand for various elderly and healthcare services.
In light of this, the Government has been proposing more extensive life and end-of-life education to members of public, hoping to break the taboo surrounding discussions about death, helping people to view death in a positive light and raising awareness about the “three instruments of peace”, i.e., wills, Enduring Power of Attorneys (EPOAs), and Advance Directives (ADs).
Three instruments of peace are viz.:-
- Will (also known as “平安紙”): the execution of a will is governed by the Wills Ordinance (Cap. 30). A will provides instructions on the distribution of the estate of the testator after he/she passes away.
- Enduring Power of Attorney (EPOA): the execution, registration, powers and scope of EPOAs is governed by the Enduring Powers of Attorney Ordinance (Cap. 501). An EPOA seeks to appoint one or more attorney(s) to manage the financial affairs of a person when he/she becomes mentally incapacitated.
- Advance Directive (AD): there is no specific statute addressing the execution and the power of scope of ADs. However, the Hospital Authority has published a recommended form of AD, and has also published guidelines for Hospital Authority clinicians. An AD seeks to address a patient’s desires about whether to receive life-sustaining treatments.
To promote the use of the “three instruments of peace”, the Government has already been subsidising and organising talks on life and end-of-life education every year. The Hong Kong Public Libraries collaborate with organisations to organise talks on life and end-of-life education every year, including talks on the “three instruments of peace”3. The Social Innovation and Entrepreneurship Development Fund (SIE Fund) also subsidises ventures related to life and death, education and the “three instruments of peace”4. It is hoped that if planning in different areas can be done in advance, better preparations can be made for the elderly and their families.
Although the concept of the three “instruments of peace” has been widely circulated among the community, it must be noted that in practical and precise terms, the execution, registration requirement, and the scope of the affairs to be covered vary for each of the three instruments of peace. Pitfalls could arise if they are not understood correctly. It is therefore hoped that the table below has summarised the requirements in order to assist members of the public:
| Will (also known as “平安紙”) | Enduring Power of Attorney (EPOA) | Advance Directive (AD) | |
| Form | No prescribed form, but wills drafted by lawyers will take into account important details, e.g., more contingency plans in place for alternate executor(s) and/or beneficiaries | Must be made using the prescribed form | Not applicable |
| When does it take effect? | When the testator passes away | On the date stipulated in the EPOA (usually when the attorney has reasons to believe the donor is becoming mentally incapable) | When 2 doctors (the patient’s attending doctor and another doctor) confirm or certify that the patient is: terminally ill; in a persistent vegetative state or a state of irreversible coma; or in other end-stage irreversible life limiting condition |
| Property and financial affairs | Executor can distribute the testator’s estate according to the will | Attorney may apply assets of the donor to: maintain the donor; prevent loss to the estate; maintain the attorney or other persons (e.g., where the donor is expected to provide for the needs of such persons); and make limited seasonal gifts to persons related or connected to the donor | Not applicable |
| Scope and restrictions | Testator may also express his/her wishes towards funeral arrangements | Donor may include any restrictions he/she likes on the attorney’s authority unrelated to health and welfare of the donor | Patient may decide whether to receive life-sustaining treatments. NOTE: Medical practitioners cannot perform euthanasia or carry out illegal instructions. |
| Mental state at signing | 1. Of sound mind 2. Having mental capacity 3. Making the instructions voluntarily 4. Knowing the nature of the instrument and its consequences | ||
| Execution requirements | Execution before 2 independent witnesses, who do not have to be lawyers. | Execution before a registered medical practitioner and a solicitor (At the same time, or first before a registered medical practitioner and within 28 days before a solicitor). Registered medical practitioner must certify that he/she was satisfied that the donor at the time of signing was mentally capable. Solicitor must certify that the donor appeared to be mentally capable. | Execution before 2 independent witnesses: First witness must be a registered medical practitioner, who could be a doctor treating or has treated the patient. Second witness must be 18 years of age. Confirm that the first witness has explained to the patient the nature and implications of the directive. |
| Independence of witnesses | A witness should not be a beneficiary under the will, otherwise the gift to that beneficiary will be void | Witnessing registered medical practitioner and solicitor must not be: the attorney; the spouse of the attorney; a relative (whether by blood or marriage) of the donor; ora relative (whether by blood or marriage) of the attorney | The 2 witnesses must not be beneficiaries under – the will of the patient; orany insurance policy held by the patient; orany other instrument made by or on behalf of the patient. |
| Requirement regarding execution by executor/attorney | An executor need not sign to confirm his/her appointment. Therefore, it is recommended that the testator discusses and informs the proposed executor of his/her appointment in advance. | Attorney must sign the EPOA before a witness | Inapplicable |
| Requirement of registration | After the testator passes away, the executor shall arrange for applying for the grant of probate, and shall file the original will with the Court. | An attorney must bring the EPOA to the High Court for registration once he/she has reason to believe the donor is or is becoming mentally incapable. As a safeguard against abuse, the donor may decide whether he/she wants to receive or have other person(s) receive notifications of registration. One of the factors to consider before registration is that once an EPOA is registered, the record that an EPOA is created by a donor and the name of the attorney becomes public information. | No requirement of registration. The patient is recommended to provide family or close friends with a copy of the AD and inform them where the original is stored. |
| Revocation | A will is generally not revoked unless: the testator enters into a marriage subsequent to the execution of the will; the testator executes another will to revoke the previous will; by written revocation executed in the same manner as the testator could validly execute a will; or the testator intends to revoke the will and he/she personally destroys or causes others to destroy the will in his/her presence and by his/her direction | When the donor is mentally capable, or after his/her recovery from mental incapacity, he/she may revoke the EPOA. Otherwise, an EPOA is revoked in limited situations, for example- bankruptcy of the attorney; death of the attorney or donor; by an order or direction of the Court. | By written revocation |
If you have any questions on the above, please contact the Co-head of our Elder Law practice Ms Helena Hu or our Associate Mr Dexter Yuen.
1 Census and Statistics Department. “Demographic Trends in Hong Kong 1991-2021” published [29 Dec 2022]. The Government of the Hong Kong Special Administrative Region. 29 Dec. 2022, https://www.censtatd.gov.hk/en/press_release_detail.html?id=5338. Accessed 24 Jun 2024.
2 Press Releases. LCQ6: Measures to cope with an ageing population. The Government of the Hong Kong Special Administrative Region. 22 Mar 2023, https://www.info.gov.hk/gia/general/202303/22/P2023032200177.htm. Accessed 24 Jun 2024.
3 Press Releases. LCQ6: Making the “Three Instruments of Peace”. The Government of the Hong Kong Special Administrative Region. 28 Jun 2023, https://www.info.gov.hk/gia/general/202306/28/P2023062800356.htm. Accessed 24 Jun 2024.
4 Press Releases. LCQ6: Making the “Three Instruments of Peace”. The Government of the Hong Kong Special Administrative Region. 28 Jun 2023, https://www.info.gov.hk/gia/general/202306/28/P2023062800356.htm. Accessed 24 Jun 2024.
Disclaimer: This article is for reference only. Nothing herein shall be construed as Hong Kong legal advice or any legal advice for that matter to any person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.
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