DOI: 10.12809/hkmj134128
MEDICAL PRACTICE
The principle of assessing mental capacity for enduring power of attorney
Victor WC Lui, FHKAM (Psychiatry), LLB1;
Charles CY Chiu, BA, LLM2;
Rachel SF Ko, MB, ChB1;
Linda CW Lam, MD, FHKAM (Psychiatry)3
1 Department of Psychiatry, Tai Po Hospital, Tai Po, Hong Kong
2 Guardianship Board, Tsim Sha Tsui, Kowloon, Hong Kong
3 Department of Psychiatry, The Chinese University of Hong Kong, Shatin,
Hong Kong
Abstract
With Hong Kong’s rapidly ageing population,
increasing numbers of people now have some form
of cognitive impairment. Enduring power of attorney
is a legal instrument that can allow individuals to
manage their financial matters if they subsequently
become mentally incapacitated. The law requires
that the mental capacity of the individual making
an enduring power of attorney should be certified
by a registered medical practitioner and a solicitor.
This paper discusses the principles involved in
the assessment of mental capacity for making an
enduring power of attorney and uses this example
to illustrate various important considerations in the formal assessment of mental capacity.
Introduction
Case vignette
A 75-year-old man is diagnosed with mild
dementia. His score in the Mini-Mental State
Examination is 23 out of 30. He is a retired
civil servant and lives with his wife, who is
physically frail. The couple own the property
they are living in and depend on his pension.
He is worried that his cognitive function will
deteriorate further and hopes that his only son
will manage his pension and property when he
becomes mentally incapable. How should his
medical doctor advise him?
An enduring power of attorney (EPA) is a legal
instrument under the Hong Kong Enduring Powers of
Attorney Ordinance (Cap. 501)
1 that allows the donor
(the person who wishes to give his or her power of
attorney to someone) to appoint an attorney(s) to take
care of his or her financial matters in the event that he
or she subsequently becomes mentally incapacitated.
2
Conventionally, a power of attorney is only made by
individuals who are mentally capable and the power
of attorney lapses if the donor subsequently becomes
mentally incapable. In contrast, an EPA is a special
type of power of attorney that continues to have effect
after the donor becomes mentally incompetent.
2 Its
key advantage is that it allows individuals to extend
their autonomy and to choose someone to look after
their affairs if the donor becomes incapable of doing
so in the future. For example, if a donor has a known
set of values, an EPA can allow a substitute to make
decisions based on his or her values. Therefore,
an EPA is regarded as a useful tool for extending
autonomous decision-making power in the event of mental incapacity.
With Hong Kong’s rapidly ageing population,
the rates of cognitive impairment and dementia are
increasing.
3 Because the elderly in Hong Kong tend
to have accumulated their own wealth and assets,
the utility of an EPA in the context of elderly care
has increasingly been recognised. Recently, the Hong
Kong Mortgage Company Limited launched an
initiative to encourage existing borrowers and new
applicants to consider arranging for EPAs to handle
their financial transactions.
4 Thus, EPAs are expected
to become more popular as people become more
aware of their use.
The donors of EPAs are typically persons who
are concerned that in the event that mental capacity
deteriorates in future, they may be subject to undue
influence and/or impaired judgement. To safeguard
against abuses of EPAs, Section 5(2) of the Enduring
Powers of Attorney Ordinance (Cap. 501) requires
a registered practitioner and a solicitor to certify
that the donor is mentally capable of executing
(making) an EPA.
1 This paper discusses an approach
to assessing an individual’s mental capacity in making
an EPA. We hope that this approach will also serve as
a useful framework for formal assessments of mental capacity.
Assessing mental capacity in
making an enduring power of attorney
Mental capacity denotes the ability to make decisions.
It is pivotal in balancing the duty to maximise the
autonomy of the vulnerable individual. Safeguarding
the autonomy of a mentally capable person is as important as protecting the rights of a mentally
incapable person. Although legally, a single test
is used for mental capacity versus incapacity, the
consequences of its certification can be very different.
If the patient is found incapable of making a decision,
protection is needed. The best interests approach or
proxy consent from a legal guardian who has been
vested with appropriate powers under the Mental
Health Ordinance may apply.
5 However, if the patient
is certified to be mentally capable, he or she will
be responsible for his or her behaviour or choices.
Therefore, assessment of mental capacity must be
performed with great care.
Mental capacity should be distinguished from
functional or physical capacity, as impairment leads
to different kinds of interventions. For instance,
a donor who has a stroke may be mentally capable
but physically unable to sign an EPA because of limb
weakness. Section 5(2)(b) of the Enduring Powers of
Attorney Ordinance (Cap. 501) provides that donors
can ask others to sign on their behalf, if they cannot
sign because of physical disability.
1
Section 5 of the Enduring Powers of Attorney
Ordinance (Cap. 501) does not impose any restriction
on the solicitors or registered medical practitioners
who can carry out the certification. However, the
certifying practitioners should be aware of the
relevant legal criteria according to the requirements
specified in Section 2 of the Enduring Powers of
Attorney Ordinance (Cap. 501). In complex cases or
when mental illness is present, it may help to seek
advice from a psychiatrist.
Preparing for formal assessment of
mental capacity
The preparatory work before an assessment is
important but can be very variable, depending
on the complexity of the case or the EPA. Before
the assessment, it is essential that the practitioner
gathers all the necessary information relevant to
the decision. In general, the decisions to be made in
an EPA include assigning the attorney and stating
their powers. Understanding the health condition
of the donor can help facilitate the interview and
assessment arrangements. If the donor has difficulty communicating, the certifying practitioner should
ensure that suitable communication aids are available.
For example, if the donor has a hearing impairment
or speaks a dialect, a hearing aid or interpreter may
be needed. If the donor has a mental disorder, prior
psychiatric assessment can help provide information
on his or her mental capacity and stability. Additional
information from a reliable informant may also be
needed to complete the psychiatric assessment.
However, caution is necessary in regard to
confidentiality and any potential conflicts of interest
relating to the EPA.
The EPA to be executed should be explained
clearly to the donor before the mental capacity
assessment. A solicitor who has a good understanding
of EPAs is usually the most appropriate person for
this job. During the mental capacity assessment, the
donor may forget relevant information about the EPA
that may require re-explanation. Therefore, it is more
expedient for the solicitor and the registered medical
practitioner to assess the donor’s mental capacity
on the same occasion rather than having separate
interviews.
Mental capacity is task-specific, which means
that the mental capacity required to create an EPA
is not the same as the capacity needed to manage
one’s property and financial affairs. An individual’s
mental capacity should not be judged based on his
or her age and/or appearance. Mental capacity is
also time-specific, focusing on the particular time
when a decision is made or has to be made. These
characteristics of mental capacity are generally
accepted in the literature
6 7 and endorsed by courts.
8
The time and task requirements for making an EPA
are further discussed in the coming sections.
Some practitioners may wish to assess the
donor’s general cognitive function, which is generally
measured with the Mini-Mental State Examination
(MMSE). Gregory et al
9 found that the degree of
cognitive impairment as measured by the MMSE
correlated significantly with the capacity to make an
EPA as assessed by a structured interview. However,
given the complex nature of mental capacity in
making individual EPAs, there is no literature
supporting the isolated use of the MMSE or similar
measures for assessing mental capacity. These kinds
of cognitive assessment scales cannot by themselves
prove an individual’s mental capacity nor replace
clinical judgement.
When the assessment should be performed
There are different legal requirements for registered
medical practitioners and solicitors regarding the
time of mental capacity certification in relation to the
execution of an EPA. Section 5(2) of the Enduring
Powers of Attorney Ordinance (Cap. 501) requires
that an EPA should first be signed before a registered medical practitioner and that the donor and the
solicitor should then sign the EPA within the next 28
days.
1 Simultaneous legal and medical assessment at
the time an EPA is made can be costly and, in some
circumstances, too onerous for some individuals,
such as an elderly person or someone with mobility
problems. The “28 days” provides a degree of flexibility
and facilitates completion of this legal instrument.
It is worth noting that compliance with these
time requirements does not necessarily prevent
others from challenging the validity of an EPA in
the future. If an EPA is signed by a donor who lacks
sufficient mental capacity, it will be void and of no
effect. The mental capacity of a donor, especially if
he or she is a frail elderly person, can fluctuate for
a variety of reasons, including delirium and mood
change. If there is reason to believe that a donor’s
mental capacity may fluctuate or deteriorate, the
mental capacity assessment by the registered medical
practitioner should be done simultaneously with the
certification by the solicitor at the time of execution.
Assessment of tasks required in
making an enduring power of
attorney
The legal test of mental incapacity for the creation of
an EPA is defined under Section 2 of the Enduring
Powers of Attorney Ordinance (Cap. 501)
1 and
Section 1A of the Powers of Attorney Ordinance (Cap.
31).
10 In essence, the certifying practitioner should be
satisfied that: the donor understands the implications
of an EPA, is capable of making the decision, and is
able to communicate his or her wish to grant an EPA.
It is useful to note how the courts have assessed
mental capacity for EPA. Although there is no case
law in Hong Kong, in the United Kingdom, the degree
of understanding required to create an EPA was
considered in
Re K, Re F.
11 According to this ruling,
the donor should understand the following four
pieces of information:
if such be the terms of the power, that the attorney
will be able to assume complete authority over
the donor’s affairs;
if such be the terms of the power, that the
attorney will in general be able to do anything
with the donor’s property which the donor could
have done;
that the authority will continue if the donor
should become mentally incapable; and
that if he should be or becomes mentally
incapable, the power will be irrevocable without
confirmation by the court.
These criteria are considered to be the
basic requirements for confirming that the donor
understands the nature and effect of the EPA.
7 12
There are several considerations in applying this test.
First, the complexity of each EPA case is different.
Based on these legal criteria, practitioners should prepare their own questions for individual EPA
donors. Second, the practitioner should avoid only
asking closed questions, such as “Do you understand
that your attorney will be able to assume complete
authority over the donor’s affairs?” In this case, a “Yes”
or “No” reply would provide little information for
establishing mental capacity. The practitioner should
try to ask open questions such as “What will your
attorney do with your affairs?” The donor’s answers
should be recorded verbatim. Third, it is possible
that the criteria are too general and do not cover the
modifications in a particular EPA. For example, the
donor may impose restrictions on the EPA, such that
the attorney can only manage specific affairs such as
the mortgage on the donor’s property. In which case,
the practitioner should specifically clarify that the
donor understands the restriction on the attorney’s
specific powers (authorities) and their effects.
More importantly, the
Re K, Re F test does not
directly address whether the donor is mentally capable
of making the decision to create an EPA as required
in the Enduring Power of Attorney Ordinance (Cap.
501). There is no consensus on how the donor’s
answers should be analysed to determine or establish
his or her mental capacity in making an EPA. One
useful approach can be found in the literature, where
mental capacity is conceptualised as consisting of
four decision-making abilities. These are: the ability
to understand relevant information, the ability to
appreciate the situation and its consequences, the
ability to reason about different options, and the
ability to communicate a choice.
13 The applicability
of assessing these decision-making abilities has
been evaluated in the local population in relation
to various decisions.
14 15 The certifying practitioners
can evaluate and comment on the performance of
the donor in relation to each decision-making ability,
which can then be used to support the assessment of
mental capacity.
Forming conclusions on mental
capacity
There are no hard and fast rules for making a definite
conclusion on mental capacity. In the context of
medical treatment, the determination of mental
capacity has been described as “a societal judgment
about the appropriate balance between respecting
the patient’s autonomy and protecting the patient
from consequences of a bad decision.”
6 This balancing
process is also required in the creation of an EPA, as
the required level of performance in assessing each
decision-making ability is at once a value judgement.
If the consequences of a donor’s decision to make
an EPA are very serious or risky, a higher level of
decision-making abilities will be required. Therefore,
the required standard for mental capacity is context-dependent
and should be tailored to the needs of the
individual case.
Documenting the assessment
The certification of mental capacity requires the legal
and medical practitioners to duly sign a prescribed
form under the Enduring Powers of Attorney
(Prescribed Form) Regulation (Cap. 501A).
16 The
certifying practitioner should write his or her full
name, address, and the date appropriately on the
form. However, the certifying practitioner should also
be prepared to produce the evidence used to establish
the donor’s mental capacity some years later in case
of future dispute or challenge in court.
One good example can be found in testamentary
capacity where certification of one’s mental capacity
is not mandatory. In Kenward v Adams (1975), Justice
(later Lord) Templeman stated that:
In the case of an aged testator or a testator
who has serious illness, there is one golden
rule which should always be observed, however
straightforward matters may appear, and
however difficult or tactless it may be to suggest
that precautions be taken: [the rule is that]
the making of a will by such a testator ought
to be witnessed or approved by a medical
practitioner who satisfies himself of the capacity
and understanding of the testator, and records
and preserves his examination and finding.17
In addition to the formal assessment of mental
capacity by a medical practitioner, the judge expects
that the examination and findings should be recorded.
This expectation illustrates the role of practitioners as
expert witnesses in a formal forensic assessment. The
practitioner’s evidence should be able to help a judge
make a proper determination of mental capacity in
any future dispute.
Conclusions and recommendations
An EPA is a useful legal instrument that can extend
the autonomy of a donor to a time when he or she is
no longer mentally capable. Although the use of EPAs
should be encouraged, the certification of mental
capacity should be performed appropriately. In
regard to the case vignette, the MMSE score neither
proves nor disproves the patient’s mental capacity.
Some degree of general cognitive impairment does
not specifically indicate whether or not a patient is
mentally capable to make an EPA. Therefore, in this
case, if the patient were able to clearly understand the
nature and effect of an EPA, he should be advised to
seek legal advice on making an EPA. A solicitor and
a registered medical practitioner would be required
to certify his mental capacity. Before the mental
capacity assessment, the EPA to be executed should
be explained to him clearly. Evaluating his decision-making
abilities relevant to the EPA (to be executed)
may help in establishing the mental capacity. Proper
documentation of the assessment is essential. In complicated cases or where mental illness is present,
psychiatric consultation should also be considered.
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