D v. T
Read the full judgment text of HCMH 69/2023 on BabelCite. This High Court CFI judgment was delivered on 31 March 2025.
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:
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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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______________ D E C I S I O N _______________ 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:
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:
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:
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:
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.
Mr Enzo Chow, instructed by Leung Kin & Co, for the applicant The interested party appeared in person The MIP was absent Attendance of the Official Solicitor was excused |
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