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 an LPA is especially important if one is a sole breadwinner for the family, or is frequently beset with health problems.
When Does a Person Lack Mental 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.
A person could lose mental capacity as a result of situations such as getting dementia, suffering from a stroke, or sustaining head trauma in an accident.
Why Get a Lasting Power of Attorney?
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Without an 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 an LPA.
However, take note that LPAs made in Singapore will not be recognised in other countries and vice versa. If you spend significant periods of time abroad and/or have property overseas, you may also wish to make an LPA (or similar document) in those countries.
Read more about the reasons to make an LPA in our other article.
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 the deceased had not made a will.
Who Can be a Donee?
The donee can be a:
Professional donee
A professional donee can be an individual or an organisation that acts as a donee on a paid basis.
Examples of professional donees who are individuals include lawyers and social workers. However, professional donees who are individuals cannot be related to the donor by blood or marriage.
Professional donees which are organisations are allowed to manage only the donor’s property and affairs.
Non-professional donee
Non-professional donees are individuals who act as donees without remuneration.
These individuals must be at least 21 years old. Individuals who are undischarged bankrupts are not allowed to manage the donor’s property and affairs.
Powers of the Donee
As mentioned, 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.
Duties of the Donee of a 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 (OPG), which is the government body responsible for administering the Mental Capacity Act, can investigate cases where the donee does not act in donor’s best interests.
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
How to Apply for a Lasting Power of Attorney
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There are 3 main steps for applying for a Lasting Power of Attorney:
- Fill in the relevant form
- Have the form certified
- Register your Lasting Power of Attorney application
1. Fill in the relevant form
The OPG has provided 2 forms on its website:
- Form 1 is the standard version of the form which grants general powers with basic restrictions to the donees.
- Form 2 is the form to use if you would like to customise the powers given to your donee. You will have to engage a lawyer to draft the wording of the powers and then attach these terms as an annex to Form 2. We can help you find a lawyer if you need one.
You can download both forms on the OPG website.
2. Have the form certified
After preparing either Form 1 or Form 2, you will have to find a certificate issuer to certify the form for you.
This certification process 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 doctor. If you are using Form 2, the lawyer who drafted the LPA’s powers can likely also certify the LPA.
The certificate issuer will generally charge a fee for certification.
3. Register your Lasting Power of Attorney application
The final step is to mail your LPA application to the OPG within 6 months of you signing it. OPG’s mailing address is:
20 Lengkok Bahru #04-02
Family @ Enabling Village
Singapore 159053
OPG will then contact you for payment and other details.
If no objections to the LPA are received within the 3 weeks after the OPG has accepted your application, your LPA will be registered. From 1 Aug 2019, all new LPA applicants will receive a soft copy LPA.
The OPG has waived the $75 LPA application fee for registration using Form 1 for Singapore citizens until 31 August 2020. For Form 2, the application fee is $200.
According to the Ministry for Social and Family Development, the average waiting time required for registering LPAs received in June 2018 was around 60 working days (including the 6-week waiting period).
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How to Use a Lasting Power of Attorney
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1. Have a doctor certify the donor’s mental health condition
To activate an LPA, take the donor to a registered doctor to obtain a medical certificate that certifies the condition of the donor’s mental health. This medical certificate is known as the Medical Report Form for LPA Transactions and is obtainable from the OPG website.
You will need to bring the LPA with you when taking the donor to the doctor.
2. Approach the relevant institution for the transaction you want to carry out
For example, if you are looking to manage the donor’s bank account, you should approach the donor’s bank.
When approaching the institution, you will need to be prepared to present your LPA document (either a hard copy or a soft copy, or a certified true copy of it from the OPG).
Other documents may also be required, depending on the institution’s internal operating procedures for activating LPAs. For example, you may also need to bring:
- The donor’s identification, e.g. NRIC
- The completed Medical Report Form for LPA Transactions
You should therefore call ahead to inquire before making your way down.
For banks, you may also need to bring a medical report obtained within the last 6 months. If the donor’s condition is permanent, you may not need a recent medical report if the latest medical report states the donor’s condition of permanently lacking mental capacity.
3. The institution verifies the validity of the LPA
Upon receiving the required documents, the institution will check with the OPG on whether the LPA is valid.
If the LPA has been confirmed to be valid, the institution will allow you to carry out transactions on the donor’s behalf.
How to Revoke a 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.
Read our article on the grounds for revoking an LPA and the procedures for revocation for more information.
How to Lift a Lasting Power of Attorney
Any person, such as a relative of the donor, may apply to the court to lift an 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 an 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
This article was first published by SLA and was republished on theAsianparent with permission.
