The current capacity tests in Hong Kong and Singapore for executing wills (including will substitutes) and appointing proxy decision-makers are derived from England. Due to an increasing rate of dementia and rapidly changing family dynamics, it has become particularly challenging to apply these tests in all these jurisdictions. Thus far, English judges who apply these tests have sought to give maximum scope to individual autonomy. For example, the courts have downplayed the requirement that the will be ‘rational on its face’. Outcome-based considerations such as whether a disposition meets the expectation of the deceased’s natural heirs are relevant only to demonstrate coherence of the decision-making process. However, there has been surprising little discussion as to whether judges in Hong Kong and Singapore adopt the same approach in applying these tests. This chapter examines relevant judicial decisions in these two jurisdictions and argues that whilst judges in Hong Kong tend to follow the English approach closely, judges in Singapore are more willing to take into account the values of family protection and concerns of improper influence in assessing capacity for testamentary and lifetime dispositions. The analysis concludes by proposing a legitimate role that family values may play in assessing testamentary capacity.

China enacted the Chinese Trust Law in 2001 and the Measures for the Administration of Trust Companies’ Collective Trust Plans (CIT Measures) in the following year.1 This legal framework was introduced to steer trust and investment companies away from providing credits outside the state credit system in the name of so-called trust loans, and instead to operate such trust business as collective-investor trusts (CITs). Both trust and investment companies, and CITs, are regulated by the China Banking and Insurance Regulatory Commission, which replaced the China Banking Regulatory Commission (CBRC) in 2018.

Individuals with cognitive impairment, whether inborn or acquired as a result of illness or accident, depend on others to manage the financial assets available for their benefit. This chapter examines the latest developments in enduring powers of attorney and special needs trusts (SNT) in Hong Kong as vehicles for financial planning for such individuals. It first examines whether the proposed reform of the enduring power of attorney will bring Hong Kong law in line with other developed jurisdictions, before outlining the advocacy efforts that led to the Hong Kong Government’s decision to launch a territory-wide special needs trust for the benefit of individuals with cognitive impairment. Finally, it examines the challenges in designing the operational framework of such a trust.

This chapter evaluates the operation of Midwest Special Needs Trust (MSNT), an organisation created to establish and administer special needs trusts. A special needs trust is used as a fiduciary tool to serve persons with disabilities so that their assets do not affect the eligibility of means-tested social benefits. It starts with an account of the history of MSNT, and then examines the specific definitions and requirements of MSNT trust accounts, the roles and responsibilities of the Trustee and co-trustees, and the merits of MSNT. This chapter also considers important aspects of the administration of MSNT, such as the establishment and termination of trust accounts, staffing, fees and expenses, data management, and investment policy. Real-life cases are discussed throughout to show how MSNT helps to improve the quality of life of the disabled. This chapter concludes with thoughts on the future development of special needs trusts, including MSNT service enhancements and other financial tools, to assist the population with disabilities.

This chapter reviews legal instruments and avenues available for planning support for people with cognitive impairments in Australia, including adult guardianship, durable powers of attorney, representative payee and nominee appointments, and special needs disability trusts; the associated public institutions such as guardianship tribunals, office of the public advocate, and public trustees; and their interaction with service delivery programs such as the National Disability Insurance Scheme and social security. It is argued that the configuration of planning instruments, and the timing of their introduction, reflects adaption to the architecture of its welfare state, including its somewhat unique combination of extensive access to tightly means-tested income support (and reforms to overcome tax minimisation or avoidance), the absence of any expectation of family support, and acceptance of state responsibility for funding of services for disabled people least able to care for themselves.

This chapter examines adult guardianship and powers of attorney in England and Wales today. Section I considers the origin of modern adult guardianship law in Roman law and traces its development in English common law through to the current legal and institutional infrastructure of mental capacity jurisdiction. It then introduces the procedures of appointing a deputy, and evaluates the safeguards provided by the Office of the Public Guardian. Section II focuses on the policy considerations underpinning the legislation on enduring and lasting powers of attorney, the development of policy and legislation over the past 35 years, and potential developments in the foreseeable future. The author also compares deputyship with attorneyship, and explains the advantages of the former over lasting powers of attorney.