Lasting Power of Attorney in Singapore
A Lasting Power of Attorney (LPA) is a legal document that allows a person who is 21 years of age or older to plan the management of his affairs in the event of a loss of mental capacity. In the LPA, the person making the LPA (known as the donor) appoints one or more persons (known as the donee) to act and make decisions on his behalf.
A donee should be someone you trust who is reliable and competent to act on your behalf. The use of a LPA is especially important if one is a sole breadwinner for the family, or is frequently beset with health problems.
Over 6,000 Singaporeans have made LPAs. Do note that there are many types of powers of attorney, and that the LPA is one special type that applies in the loss of mental capacity.
What can the donee do on your behalf
The donee is given the authority to make decisions about the donor’s personal welfare and/or property and financial matters. This includes where a donor is to live and how he is to be cared for. The LPA can also allow the donee to access your bank accounts on your behalf.
When does a person lack capacity
Under the Mental Capacity Act, a person is defined to lack capacity if he is “unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”. It does not matter whether the impairment or disturbance is permanent or temporary. Possible examples could include dementia, a stroke or a head trauma as the result of an accident.
Why get a Lasting Power of Attorney?
Without a LPA, a court order would have to be obtained in order to administer the affairs of a person who lacks mental capacity. This court order is one where the court appoints a person to be the court-appointed deputy to manage the affairs of the person who lacks mental capacity. An LPA avoids the hassle of getting a court order, which can be both time-consuming and expensive. Additionally, where a deputy is appointed, you do not get a say in who is appointed to act for you, unlike a LPA.
Difference between a Lasting Power of Attorney and a Will
A will operates only after the will-maker’s death. The LPA operates after the donor loses his mental capacity.
The LPA also does not deal with the distribution of a person’s assets after his death. This is settled according to the terms of his will, or the laws of intestacy if he does not make a will.
Who can be a donee
The donee must be a person who is at least 21 years old when the LPA is signed. He also cannot be an undischarged bankrupt.
Duties and powers of the donee of the Lasting Power of Attorney
The donee, in the exercise of his powers conferred by the LPA, must act in the best interests of the donor. Best interests is defined in section 6 of the Mental Capacity Act. The Office of the Public Guardian can investigate cases where the doneee does not act in the best interests of the donor.
Additionally, the LPA document itself may include restrictions or conditions limiting the power of the donee. Where the donor recovers his mental capacity, the donee no longer has the power to make decisions for the donor.
Statutory restrictions on a donee’s powers
Sections 13 and 14 of the Mental Capacity Act contains multiple restrictions and conditions limiting the authority of a donee. They relate to:
- Restraining the donor;
- Medical treatment or healthcare of the donor;
- Nominations under the Insurance Act;
- Execution of wills for the donor;
- CPF funds;
- Dealing with the donor’s property; and
- Making gifts out of the donor’s property.
Revocation of the Lasting Power of Attorney
The LPA is revoked in certain conditions outlined in section 15 of the Mental Capacity Act. Most importantly, where the donor recovers his mental capacity, he can revoke the LPA.
How to lift the Lasting Power of Attorney
Any person, such as a relative of the donor, may apply to the court to lift the LPA. The court has the power to revoke or lift the LPA, under the following conditions:
- Where fraud or undue pressure was used to induce the donor to create the LPA; or
- Where the donee behaves, is behaving, or proposes to behave in a way that would contravene his authority or would not be in the donor’s best interests.
Where a donor of a LPA ill treats the donee, he may be liable to severe sanctions, including a fine and imprisonment, by virtue of section 42 of the Mental Capacity Act.
How to get a Lasting Power of Attorney
The Office of Public Guardian (OPG), which is the government body responsible for the administration of the Mental Capacity Act, provides two forms on its website. For the standard version of the form which grants general powers with basic restrictions to the donees (Form 1), the process is simple. Fill it up, and then find a certificate issuer to certify the form. This is to certify that you understand the purpose of the LPA and consequences of the LPA. It also ensures that there is no fraud or undue pressure used to induce the donor to create the LPA.
The certificate issuer can either be a practising lawyer, a psychiatrist, or an accredited medical practitioner. The certificate issuer will generally charge a fee for certification. We can help you find a lawyer here.
If you would like to customise the powers given to your donee, you can engage a lawyer to draft out the terms. These can then be attached as annex to a form that the LPA provides (Form 2). You would still need a certificate issuer but the lawyer drafting out the terms can likely also certify the LPA.
In order for an LPA to be validly created, it needs to be registered with the OPG. Thus, the final step is to post your Lasting Power of Attorney application to the OPG. They will then contact you for payment and other details. The OPG has announced that there will be a fee waiver of the $50 LPA application fee for registration using Form 1 for Singapore citizens from 1st September 2014. For Form 2, the application fee is $200.
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