D v. T

HCMH 69/2023

[2025] HKCFI 1726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MENTAL HEALTH CASE NO 69 OF 2023

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BETWEEN

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D E C I S I O N

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INTRODUCTION

1.  By order dated 12 March 2024, I granted a declaration that CTF is incapable by reason of his mental incapacity of managing and administering his properties and affairs. What remain to be resolved at this adjourned hearing are the following matters:

(1) whether the enduring power of attorney signed by CTF and dated 2 December 2020 should be revoked pursuant to section 13(1)(e) of the Enduring Powers of Attorney Ordinance, Cap 501;

(2) who should be appointed as committee of the estate of CTF; and

(3) what powers should be given to the committee.

2.  CTF has five children – three sons and two daughters. Under the enduring power of attorney, he appointed his three sons to be his attorneys, who are to “act jointly”.

3.  The applicant, whom I shall call D below, is one of the two daughters. Her stance on the above issues is that the enduring power of attorney should be revoked, and that she and the other three children, namely S, TW and WP, should be appointed as the committee. S, TW and WP have already given their written consent to act. I shall refer to the four siblings as “the applicant’s camp” below.

4.  T is the eldest son of CTF. He opposes the revocation of the enduring power of attorney. As to the issue of who should be appointed to the committee, T’s stance has shifted in the course of these mental health proceedings. At the earlier stage of the hearing in March 2024, he stated unequivocally that he did not apply to become a committee of CTF’s estate. This stance was recorded in the recital of the sealed order dated 12 March 2024. And that is the reason why he was not made a respondent in these proceedings. But his stance today is that he wants to join as a member of the committee.

THE FIRST ISSUE – THE ENDURING POWER OF ATTORNEY

5.  CTF is now 90 years old. His main assets comprise cash in bank accounts and five real properties. Two of those are two adjoining flats in Yuen Long, where he and his wife now live. I should record here that his wife has been declared a mentally incapacitated person in HCMH 132/2022 in December 2024. The three other properties are shop premises in Yuen Long.

The opposing views

6.  As regards the enduring power of attorney, D’s stance is that there are serious disputes, conflicts and distrust between T on the one hand and the other four siblings on the other in respect of the management of the financial affairs and properties of CTF. She contends that it is not possible that the three sons can cooperate or act jointly as contemplated and required under the enduring power of attorney. And the document would therefore be rendered unworkable. To insist on keeping the enduring power of attorney would hinder the management of the estate of CTF and would not be in his best interests.

7.  On the other hand, T’s stance is that CTF’s wish should be respected and implemented and T should not be excluded from handling his properties and affairs. In his own words, T’s stance is as follows:

“尊重並按照父親清醒時建立「持久授權書」EPA的意願為基礎,建立監察、管理父母資產的制度, 並且制定「管理委員會」的權力限制。法院命令保留父親的「持久授權書」, 維持有效,作為「三兄弟一致行動」執行簡單而快速的, 初步批准突發撥款的途徑, 為「管理委員會」提供方便, 為父母謀福祉。”

Legal principles

8.  In the context of an application to revoke an enduring power of attorney, the starting point of the discussion must be the recognition that the enduring power is executed by a donor to provide for what should happen in the contingency that he may lose his mental capacity one day.

9.  Here, CTF’s wish is that the three sons should act jointly as his attorneys. In the present case, there is no challenge to the validity of the power itself. The court should respect generally a donor’s right to autonomy and self-determination and should generally defer to his wishes as expressed in the enduring power of attorney.

10.  One should not shy away from the fact that any decision to revoke the enduring power of attorney is an interference with the donor’s wishes and his right to autonomy. This is therefore not a decision to be taken lightly. There must be good justification if the court is to revoke an enduring power of attorney.

11.  At the same time, where the court has declared a person to be a mentally incapacitated person, and is called upon to make decisions concerning his properties and financial affairs, the court must consider his welfare and take his needs and interests as the paramount consideration.

12.  Where the donor’s wishes provided for in an enduring power is plainly contrary to his well-being, it will be a proper exercise of the court’s power to revoke it, and in effect substitute its own view for that of the donor as to what is in his best interests.

13.  Whether the court should do so or not is case specific and fact specific. The weight of the donor’s wishes varies from case to case.

14.  The crucial question is the extent to which the donor’s wishes and feelings, if given effect to, can properly be accommodated within the court’s overall assessment of what is fair in his best interests.

15.  For the above legal principles, see C v B (Re A: Mental Health) [2018] 2 HKLRD 1105, [2018] HKCFI 467 at paras 132 to 138, citing Re M (Statutory Will) [2011] 1 WLR 344 at para 35.

Discussion

16.  I have reviewed the extensive affirmations filed in this proceeding and submissions made before me. I also have had a chance to observe and hear directly from some of the siblings, who attended court on previous occasions and today’s hearing.

17.  I am satisfied that the relationship between the siblings has broken down to such an extent that it will be impossible for the three sons to work together to carry out the duties under the enduring power of attorney. The distrust, hostility, and ill-feelings between the applicant’s camp on the one hand and T on the other is palpable and it runs so deep that it is also unrealistic to expect that things will take a turn for the better anytime soon.

18.  Very serious accusations are made by both sides and very strong language is used.

19.  The applicant’s camp accuses T of, among other things, taking advantage of CTF’s dementia and secretly withdrawing cash of over $1 million from CTF’s bank account in 2018 and 2019. TW in his affirmation filed in the mental health proceedings concerning his mother said this:

“I genuinely believe that these cash withdrawals which done by [T] or due to his undue pressure towards CTF for [T]’s own benefit. [T] kept stealing these cash withdrawn by CTF from the BOC joint account from CTF’s locked draws as CTF was unable to keep a track of what he withdrew or spent due to his dementia.”

20.  The police were called on three occasions in 2022 and 2023.

21.  On T’s part, he equally made serious accusations against the applicant’s camp. He said this:

“自從2023年3月開始, [D]一干人等一直在黑箱作業, 不理會我提出多次要求, 不對我披露父母資產的狀況, 任意及非法地操控父母的資產 … [D]一干人等, 更製作MIP父親簽署處理資產的英文信, 帶MIP父親去元朗警署以「傳譯員」的身分報假案, [TW]入稟多份曾經塗蓋的醫管局醫療報告, 及其他在本人的誓章內題及的多項的不誠實行為, 他們的行事手法足以證明他們「缺乏誠信」的一伙。我恐怕[D]一干人等會在毫無約制的情況下, 侵吞父母資產, 然後逃離香港, (事實上, [S]、[TW]和[WP]三人都一向居住在海外), 請問誰人願意為這種「挾帶私逃」的罪行而負責?”

22.  The present inquiry is not the occasion to resolve these serious factual disputes. What matters at this stage is that it is plain that to require the three sons to work together to manage the cash and the real properties of CTF, including renting out the shop premises to generate income, is just not going to work. To insist them to do so would cripple the management of the estate of CTF. To give effect to the enduring power of attorney would not be in the best interests of CTF. Therefore, I exercise my discretion to revoke the enduring power of attorney.

THE SECOND ISSUE – IDENTITY OF THE COMMITTEE

23.  There is no doubt that there is a need to appoint a committee. The applicant and the three children put themselves forward to be members of the committee. T’s position has shifted in these proceedings as remarked above. At today’s hearing, he makes it clear that he wants to be a committee member.

24.  As explained above, the hostility between the siblings would mean that it is not workable to include all the five children in the committee. In order for it to operate effectively and efficiently, I am of the view that the four children should be appointed, but at the same time T should be given information about the estate in a timely manner. There should be transparency in the management of the estate so that T may give his feedback to the committee.

25.  The above arrangement would be in keeping with the wishes of CTF as expressed in the enduring power of attorney, even though his wishes cannot now be fully implemented.

26.  T has also made a number of requests concerning access to CTF in person and by calls, access to information concerning CTF’s medical condition and access to bank statements. In light of the wishes as expressed in the enduring power of attorney, I consider that these are all reasonable requests.

27.  There is a dispute as to whether CTF in fact does not want to see T in person. The applicant has shown me a video in which CTF said that he does not want to see T. Again, in this inquiry, I cannot decide the matter one way or the other. For today’s purpose, it would be proper for me to make a direction to give access to the father to T, but that would be subject to the wish of CTF insofar as that can be ascertained.

THE THIRD ISSUE – POWERS TO BE GIVEN

28.  I approve the draft produced by the applicant, subject to the changes that I have just discussed with counsel and T.

29.  I would add that a number of T’s requests have now been reflected in the final order. But I have rejected his request to instantaneous access to CCTV installed at the residence of CTF. I find that to be an unnecessary intrusion into the privacy of CTF, his wife and also the domestic helper who lives there.