The population in Hong Kong has one of the highest average lifespans compared with the rest of the world. In fact – according to studies and data released by several health and welfare authorities – the territory enjoys one the longest life expectancies in the world, closely followed by Japan, Italy, Switzerland and Iceland. The average lifespan for women in Hong Kong is over 87 years. Local men on average can expect to live slightly more than 81 years.
However, birth, ageing, illness and death are surely amongst the few certainties of life, and with longer lifespans more issues arise.
Death is often a taboo in Hong Kong and people do not like to think about it. Hence, we have seen a lot of issues arising as a consequence of the lack of, or delay in, planning for one’s death.
What is a Living Will?
A Living Will is sometimes also known as an “Advance Decision to Refuse Treatment” or “Advance Health Directive“. It is a written document in which a person indicates when mentally competent the form of healthcare he/she would like to have in an eventual future case of becoming mentally incapable of making certain decisions. The primary use is to have patients give directions and instructions about what healthcare treatments they would like to receive when they will no longer be capable of making such decisions. The development of advance directives is largely derived from the principle of informed consent and the belief in an individual’s autonomy in making decisions about healthcare.
Sharing crucial medical intentions and decisions with family or friends can help to ease their burden and reduce their uncertainty about what to do in the event that some day they will be faced with having to make healthcare decisions on another person’s behalf. The vast majority of patients who are under palliative care or facing terminal illness believe that life quality is much more important than keeping their basic physical functions going while in an unconscious state. Thus, through proper and advanced planning, a person can decide if and how to plan to end his/her life journey with dignity if such medical circumstances were to occur.
Is a Living Will legal in Hong Kong?
Technically it is not. The closest document that is available is what’s called an Enduring Power of Attorney (“EPOA”), which mostly empowers your attorney to handle your financial affairs when you are unconscious. It must be drafted in the prescribed form set out in Enduring Powers of Attorney Ordinance (Cap. 501), attested by one solicitor and one medical practitioner, and registered with the High Court before it becomes effective. We have talked extensively about EPOAs in previously published articles, for example “Enduring Power of Attorney: Sound Advice for the Unsound Mind!“.
An EPOA is the best tool for those who require family members to have access to their financial resources in order to look after them when they are incapacitated, as well as making final decisions about medical treatments.
You can still certainly make an Advance Health Directive, but the reality is that there is no legislation in Hong Kong governing the enforceability of such documents. Thus, doctors may choose not to follow such directives even if he/she is aware of such document and its contents before performing medical treatment on you, while often may be required in urgent circumstances where a decision must be made immediately. Moreover, Advance Health Directives generally simply state whether you wish to receive life sustaining treatment when you become terminally ill or in a persistently vegetative state. They do not empower anyone to make other binding decisions in your place.
Current consultations and eventual legal developments
The Hong Kong Government is currently seeking views from the general public about whether to give legal backing to Living Wills for healthcare patients, especially to allow medical practitioners to know in advance that these individuals don’t want to be given certain treatments in specific situations.
The government is in fact proposing for mentally competent adults to make provisions and allow the directives to be taken in writing in the presence of two witnesses, one being a medical practitioner. Also, that such directives might be verbally revoked by patients, if they wish to do so at a later stage. The government proposals suggest that patients should be able to refuse life-sustaining treatments such as cardiopulmonary resuscitation, artificial ventilation and tube-feeding, but that patients should not be allowed to opt out of basic healthcare, such as pain relief or being given food and water. Meanwhile, the Hospital Authority has reiterated that euthanasia will not be part of such proposals.
The three main purposes of enacting specific legislation about this matter are:
- to codify the current common law position related to advance directives and to increase safeguards in this regard;
- to remove legislative impediments to the implementation of advance directives by emergency rescue personnel; and
- to amend the relevant provisions of the Coroners Ordinance (Cap. 504) to facilitate dying in place in residential care homes for the elderly.
Specifically to the last point, studies in Hong Kong have found that the acceptance of advance directives among the elderly population is very high. One study has found that 88% of Chinese adults residing in nursing homes would prefer to have an advance directive regarding its future medical treatment.
The government is rolling out its consultation including detailed proposals regarding the procedures to set up an Advanced Directive, the possibility of refusing, modifying or revoking such directive, the legal basis to ensure its validity and applicability, as well as providing legal protection to treatment providers.
The consultation process will end later this year and it is hoped that legislation will follow with more clarity in relation to protecting the rights of individuals wishing to give instructions about their intentions and decisions.
Clearly most of us hope that future legislation will regulate this matter as soon as possible to avoid what is presently an unclear legal area, help improve the quality of life of patients right up to their last moments and, in particular, to the wellbeing of their families.
While the possibility of a legal challenge remains until legislation has been enacted and come into force, we recommend that people consider including in their Will specific provisions not only regarding their assets, but also other advance health instructions in the event that they become mentally incapacitated.
For example, given the lack of recognition of same-sex marriages or civil unions in Hong Kong, we have a high number of same-sex couples asking us how to ensure that they can look after each other in the eventuality that one or both of them fall sick. This is particularly important if they have other family members, especially if their relationship is not accepted by them. Our advice is that it is essential to have proper documentation in place so that it can speak the spouse’s behalf when he/she might not be able say it himself/herself. Such documents should cover spouse’s visitation rights, disposal of body, funeral arrangements, and managing his/her estate.
Our team at Hugill & Ip has extensive experience in dealing with Estate Planning issues – so kindly get in touch with us to find out how we can help.
Until end of this year, our team at Hugill & Ip will cover specific issues related to LGBT rights, estate planning, discrimination and confidentiality. We wish to make the community in Hong Kong better aware of matters and legal protections afforded to individuals affected by HIV and AIDS as part of the Wills of Concern charity campaign.
This article is for information purposes only. Its contents do not constitute legal advice and readers should not regard this article as a substitute for detailed advice in individual instances.