POWERS OF ATTORNEY ORDINANCE

POWERS OF ATTORNEY ORDINANCE

LAWS OF HONG KONG

POWERS OF ATTORNEY ORDINANCE

CHAPTER 31





CHAPTER 31

POWERS OF ATTORNEY

To make new provision in relation to powers of attorney and for
matters connected therewith.

[1 October 1972.]

1. This Ordinance may be cited as the Powers of Attorney
Ordinance.

2. (1) An instrument creating a power of attorney shall be signed
and sealed by, or by direction and in the presence of, the donor of the
power.

(2) Where such an instrument is signed and sealed by a person by
direction and in the presence of the donor of the power, two other
persons shall be present as witnesses and shall attest the instrument.

(3) This section is without prejudice to any requirement in, or
having effect under, any other Ordinance as to the witnessing of
instruments creating powers of attorney and does not affect the rules
relating to the execution of instruments by corporations.

3. (1) The contents of an instrument creating a power of attorney
may be proved by means of a copy which

(a)is a reproduction of the original made with a photographic or
other device for reproducing documents in facsimile; and

(b)contains the following certificate or certificates signed by the
donor of the power or by a solicitor, that is to say

(i) a certificate at the end to the effect that the copy is a true
and complete copy of the original; and

(ii) if the original consists of two or more pages, a certificate
at the end of each page of the copy to the effect that it is a
true and complete copy of the corresponding page of the
original.

(2) Where a copy of an instrument creating a power of attorney has
been made which complies with subsection (1), the contents of the
instrument may also be proved by means of a copy of that copy if the
further copy itself complies with that subsection, taking references in it
to the original as references to the copy from which the further copy is
made.

(3) In favour of a person acting in good faith a signature on a
certificate under subsection (1)(b) purporting to be that of a person
described as being a solicitor shall, until the contrary is proved, be
deemed sufficient for the purposes of this section.





(4) This section is without prejudice to any other method of proof
authorized by any other Ordinance.

(5) In this section 'solicitor' means a person who is enrolled on
the roll of solicitors kept under the Legal Practitioners Ordinance and
who, at the material time, is not suspended from practice.

4. (1) Where a power of attorney is expressed to be irrevocable and
is given to secure

(a)a proprietary interest of the donee of the power; or

(b)the performance of an obligation owed to the donee,

then, so long as the donee has that interest or the obligation remains
undischarged, the power shall not be revoked

(i)by the donor without the consent of the donee; or

(ii)by the death, incapacity or bankruptcy of the donor or, if the
donor is a corporation, by its winding up or dissolution.

(2) A power of attorney given to secure a proprietary interest may
be given to the person entitled to the interest and persons deriving title
under him to that interest, and those persons shall be duly constituted
donees of the power for all purposes of the power but without prejudice
to any right to appoint substitutes given by the power.

(3) This section applies to powers of attorney whenever created.

5. (1) A donee of a power of attorney who acts in pursuance of the
power at a time when it has been revoked shall not, by reason of the
revocation, incur any liability (either to the donor or to any other
person) if at that time he did not know that the power had been revoked.

(2) Where a power of attorney has been revoked and a person,
without knowledge of the revocation, deals with the donee of the
power, the transaction between them shall, in favour of that person, be
as valid as if the power had then been in existence.

(3) Where the power is expressed in the instrument creating it to be
irrevocable and to be given by way of security then, unless the person
dealing with the donee knows that it was not in fact given by way of
security, he shall be entitled to assume that the power is incapable of
revocation except by the donor acting with the consent of the donee
and shall accordingly be treated for the purposes of subsection (2) as
having knowledge of the revocation only if he knows that it has been
revoked in that manner.

(4) Where the interest of a purchaser depends on whether a
transaction between the donee of a power of attorney and another
person was valid by virtue of subsection (2), it shall be conclusively
presumed in favour of the purchaser that that person did not at the
material time know of the revocation of the power if





(a)the transaction between that person and the donee was
completed within twelve months of the date on which the
power came into operation; or

(b)that person makes a statutory declaration, before or within
three months after the completion of the purchase, that he did
not at the material time know of the revocation of the power.

(5) Without prejudice to subsection (3), for the purposes of this
section knowledge of the revocation of a power of attorney includes
knowledge of the occurrence of any event (such as the death of the
donor) which has the effect of revoking the power.

(6)In this section-

'purchaser' means

(a)a purchaser in good faith for valuable consideration;

(b)a lessee, mortgagee or other person who for valuable
consideration acquires an interest in property; and

(e)an intending purchaser; and

'valuable consideration' includes marriage but not a nominal
consideration in money.

(7) This section applies whenever the power of attorney was
created but only to acts and transactions after the commencement of this
Ordinance.

(8) No statutory declaration relating to a power of attorney made
under subsection (4)(b) at any time after the commencement of the
Powers of Attorney (Amendment) Ordinance 1987 shall be sufficient if
made before

(a)a solicitor who acted for the declarant or the donee of the
power of attorney in the transaction referred to in subsection
(2);

(b)a solicitor acting, or who has acted, for a party in any
transaction affected by the statutory declaration;

(c)a partner, clerk or employee of a solicitor mentioned in
paragraph (a) or (b); or

(d)a partner, clerk or employee of a partner of a solicitor
mentioned in paragraph (a) or (b). (Added, 34 of 1987, s.2)

(9) For the avoidance of doubt, it is hereby declared that a statutory
declaration made under subsection (4)(b) at any time prior to the
commencement of the Powers of Attorney (Amendment) Ordinance 1987
shall not be invalid or otherwise ineffective for its purpose solely by
reason of the fact that it was made before any solicitor, partner, clerk or
employee mentioned in subsection (8). (Added, 34 of 1987, s. 2)





fit- 6. (1) The donee of a power of attorney may, if he thinks

(a)execute any instrument with his own signature and, where
sealing is required, with his own seal; and

(b)do any other thing in his own name,

by the authority of the donor of the power; and any document executed
or thing done in that manner shall be as effective as if executed or done
by the donee with the signature and seal, or, as the case may be, in the
name, of the donor of the power.

(2) For the avoidance of doubt it is hereby declared that an
instrument may be executed on behalf of a person by a donee of a power
of attorney either as provided in this section or as provided in any other
Ordinance.

(3) This section is without prejudice to a provision in any other
Ordinance requiring an instrument to be executed by a person specified
therein.

(4) This section applies to powers of attorney whenever created.

7. (1) Subject to subsection (2), a general power of attorney in the
form set out in the Schedule, or in a form to the like effect but expressed
to be made under this Ordinance, shall operate to confer

(a) on the donee of the power; or

(b)if there is more than one donee, on the donees acting jointly or
acting jointly or severally, as the case may be,

authority to do on behalf of the donor anything which he can lawfully
do by an attorney.

(2) This section does not apply to functions which the donor has
as a trustee or personal representative.

SCHEDULE [s. 7.1

POWERS OF ATTORNEY
ORDINANCE

(Chapter 3 1)

FORM OF GENERAL POWER OF ATTORNEY FOR PURPOSES
OF SECTION 7

THIS GENERAL POWER OF ATTORNEY is made this day of
19 by AB of (address)

I appoint CD of (address) [or CD of (address) and

EF of (address) jointly or jointly and severally] to be my attomey(s)
in accordance with section 7 of the Powers of Attorney Ordinance.

IN WITNESS whereof I have hereunto set my hand and
seal.

(L.S.)

Signature, etc.
1987 Originally 51 of 1972. 34 of 1987. L.N. 176/72. Short title. Execution of powers of attorney. 1971 c. 27, s. 1. Proof of instruments creating powers of attorney. 1971 c. 27, s. 3. (Cap. 159.) Powers of attorney given as security. 1971 c. 27, s. 4. Protection of donee and third persons where power of attorney is revoked. 1971 c. 27, s. 5. (34 of 1987.) (34 of 1987.) Execution of instruments, etc. by donee of power of attorney. 1971 c. 27, s. 7. Effect of general power of attorney in specified form. Schedule. 1971 c. 27, s. 10.

Originally 51 of 1972. 34 of 1987. L.N. 176/72. Short title. Execution of powers of attorney. 1971 c. 27, s. 1. Proof of instruments creating powers of attorney. 1971 c. 27, s. 3. (Cap. 159.) Powers of attorney given as security. 1971 c. 27, s. 4. Protection of donee and third persons where power of attorney is revoked. 1971 c. 27, s. 5. (34 of 1987.) (34 of 1987.) Execution of instruments, etc. by donee of power of attorney. 1971 c. 27, s. 7. Effect of general power of attorney in specified form. Schedule. 1971 c. 27, s. 10.

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