Protecting the rights of a same-sex partner

As the LGBT+ community continues its fight against discrimination in Hong Kong, Boase Cohen & Collins Associate Kristie Wong and Trainee Christine Lo pinpoint two key steps which individuals in same-sex relationships can take to protect the rights of their other halves.

Hong Kong, 24 April 2020: A report initiated by the Equal Opportunities Commission last summer identified nearly 100 ways that people in same-sex marriages and LGBT+ partnerships are treated differently under Hong Kong law.

Despite some landmark judicial review cases in recent years regarding certain immigration rules, public housing policies (see our Partner Lisa Wong’s analysis of a recent High Court ruling here) and tax benefits, there is still a long way to go for same-sex couples in Hong Kong to enjoy the same rights as heterosexual couples. Therefore, it is advisable for same-sex couples to have appropriate plans in place should one of them become incapacitated or pass away. Here are two things people can do to protect their other halves under the current legal regime.

1. Make a Will

Leaving a will allows your family and your partner to understand your wishes on the division of assets. It also gives you assurance that your partner will be the one inheriting your assets and will be financially looked after following your passing. If someone dies without a will, i.e. intestate, his or her assets and properties will be distributed according to the intestate succession law in Hong Kong.

As same-sex marriage is not recognised in the relevant legislation, the surviving partner may not have right of succession. Unlike a surviving opposite-sex spouse, he or she is not entitled to first priority ranking in obtaining a grant of administration in relation to the deceased’s estate under Rule 21 of the Non-Contentious Probate Rule (Cap. 10A). Nor is he or she entitled to acquire the premises in which they resided with the deceased at the time of death, according to Section 7 of and Schedule 2 to the Intestates’ Estates Ordinance (Cap. 73).

Without a legal spouse or children, the deceased’s estate will be shared between their parents or siblings under Section 4 of the Intestates’ Estates Ordinance (Cap. 73). The same-sex partner can possibly apply for provision under Section 4 of the Inheritance (Provision for Family and Dependents) Ordinance (Cap. 481) if he or she was wholly or substantially maintained by the deceased before their death (see our Partner Fiona Chan’s blog on this topic here). However, having a will can avoid disputes and enhance certainty in the division of assets. It is a simple yet powerful step one should take.

2. Enduring Power of Attorney

The Enduring Power of Attorney is an affordable legal instrument to appoint someone else to manage your property. If a party (“Donor”) enters into an Enduring Power of Attorney (“EPA”), it allows a partner (“Attorney”) to continue to manage the financial affairs on his or her behalf even when the Donor becomes mentally incapacitated. In particular, this allows the Attorney to operate the bank accounts and utilise the Donor’s financial resources to look after the Donor.

Any person can be an Attorney and they do not have to be a relative of the Donor. An EPA has to be executed in front of a practicing solicitor and a medical practitioner in Hong Kong. When the Donor becomes mentally incapacitated, the Attorney shall register EPA with the High Court of Hong Kong for it to continue to be valid.

According to Section 8 of the Enduring Powers of Attorney Ordinance (Cap.501), this power includes: (a) to benefit himself or another person if the Donor is expected to provide for those needs: and (b) to dispose of the Donor’s property by way of gift to charity or persons connected with the donor, if the gift is of a seasonal nature or on an anniversary of a birth or marriage.

With sufficient communication with your partner of your preferences and wishes, this arrangement can allow you to extend your autonomous choice as to how your finances are to be managed even when you are no longer able to do it yourself. With proper planning in advance, the EPA may minimise potential conflicts and litigations and allow a smoother transition when incapacity sets in.

Without EPA, the co-habiting partner may still apply for guardianship orders (s. 59M of the Mental Health Ordinance) and/or an order from the High Court to appoint him/her to be “committee” (s. 11 of the Mental Health Ordinance) for various powers to manage and administer your properties and affairs. A risk of litigation arises if other family members object to the granting of such an order. This could result in an impartial third party being appointed to manage the financial affairs, a situation which may lead to higher professional costs being paid out of the family wealth.

The steps outlined above are not confined to people in same-sex relationships, they are recommended for any adult who wishes to protect the rights of their loved ones in the event of their passing or becoming incapacitated.

Boase Cohen & Collins has an experienced Wills and Estate Administration team able to handle all aspects of this complex area of law. For further information, please contact Ms. Fiona Chan (FionaChan@boasecohencollins.com) for further enquiries.

The LGBT+ community in Hong Kong faces an ongoing battle for equal rights.