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Course Details

Mental Incapacity and Enduring Power of Attorney
Ken To, Barrister-at-law, Sir Oswald Cheung's Chambers
LI Pak Hei, Barrister-at-law, Sir Oswald Cheung's Chambers
Date: 31 March 2020 (Tuesday)
Time: 2:30pm - 5:45pm
Level: I (Intermediate)
For delegates who have prior knowledge of the subject area
Language: English
Fee: HK$ 1,700
Accreditation: (Law CPD Points being applied for)
Ref: L20OT01
Venue: Learning Commons Ltd
Room 1602, 16/F,
1 Duddell Street,
Central, Hong Kong
[View Map]
Presenter's Biography:

Ken To completed his legal studies (BA and MA) at the University of Cambridge, and was a recipient of the Cambridge Overseas Trust Scholarship and Chevening Scholarship.

Ken's practice predominantly covers probate and trust, mental incapacity, arbitration and general commercial. He acts as counsel in international and domestic arbitrations, acts as a mediator in cross border disputes and sits as an arbitrator.

Ken is a fellow of the Hong Kong Institute of Arbitration, and has been regularly appointed an arbitrator in both international and domestic arbitrations, both as the sole arbitrator or a co-arbitrator in an arbitral tribunal. He is also regularly instructed as a counsel in arbitration proceedings.

Pak Hei read law at the University of Hong Kong and King's College London under their dual-degree programme. After graduating with first class honours for both degrees, he completed an LLM at University College London, specialising in Maritime Law.

Pak Hei joined Sir Oswald Cheung's Chambers in 2019 and is developing a broad civil practice. He is also a part-time lecturer at the University of Hong Kong, teaching Contract law.
 
Objective:

Part II of the Mental Health Ordinance (Cap 136) ("the MHO") concerns the management of property and affairs of mentally incapacitated persons ("MIP"). Upon application, the court has power to conduct an inquiry as to whether a person is incapable, by reason of mental incapacity, of managing and administering his property and affairs. Such an inquiry involves a two-stage process: 1) the initial stage where directions are sought from the court; and 2) the stage where the actual inquiry takes place. If the court is satisfied that the person is a MIP, it may appoint a committee of the estate to manage it on his behalf.

This seminar will provide an overview on the practice and procedure for applications under Part II of the MHO. A Part II application can be broadly divided into three stages, namely: 1) pre-inquiry; 2) inquiry and 3) post-inquiry. A range of issues arising out of these three stages will be addressed. For instance, how will the court decide whether a committee should be appointed to manage a MIP's property and affairs? Who should be appointed? The matter does not end with the appointment of a committee - How does the Court supervise the functioning of the committee? Furthermore, what is the interplay between Part II of the MHO and the Enduring Powers of Attorney Ordinance (Cap 501)? Answers to these questions will provide practitioners with a holistic perspective of Part II of the MHO.
 
Outline:

General
  • Practice Direction 30.1


Initial Stage
  • Re Madam A (HCMP 44/2004)
  • Re C (HCMP 424/2004)
  • Re CK (HCMH 77/2011 and HCMH 81/2011)
  • Re LG (HCMH 78/2012)
  • CKKK v CKB (CACV 162/2015)


Inquiry Stage
  • Re S (HCMP 1287/2004)
  • Re FCP (HCMP 947/2007)
  • Re THM (HCMH 16/2008)
  • Re A [2009] 2 HKLRD 159
  • Re Estate of KSK [2009] 2 HKLRD 77
  • Re ECA [2019] HKCFI 49


Post-inquiry Stage
  • Re KKC (HCMP 3843/1998)
  • Re YLC (HCMP 1190/2005)
  • Re MK (HCMP 851/2005)
  • Re CK (HCMP 1150/2006)
  • Re YWK (HCMP 2467/2006)
  • Re IWY [2008] 4 HKLRD 399
  • Re TYL [2009] 5 HKLRD 100


Enduring Powers of Attorney Ordinance (Cap 501)
  • Chui Kwok Ying v Chui Siu Kiu Kim and Chui Siu Man Vincent (HCMP 2018/2014)
  • Ko Siu Yung v Cheung Hay Lee Hailey [2018] HKCFI 1797
  • Re Madam A [2018] HKCFI 467, [2018] 2 HKLRD 1105; [2019] HKCA 321, [2019] 2 HKLRD 613
  • Kwok Chi Yin v Kwok Yau Ki Jesse [2019] HKCFI 428
  • To Lee Wah Samuel v Yum Hui Ming and To Lai Wing Oliver [2019] HKCFI 1441

 
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