The Lasting Power of Attorney (LPA) is an important legal document that allows individuals above 21 years old in Singapore to appoint someone they trust to make decisions on their behalf. It grants authority to a trusted person, known as the donee, to make decisions on behalf of the donor in the event of the donor’s loss of mental capacity due to illness, injury, or other reasons.
It is a proactive measure that ensures that your interests and wishes are protected, even when you are unable to make certain decisions.
In this article, we will explore the Lasting Power of Attorney in Singapore, its significance, and how it can be essential in planning for your future and safeguarding your interests.
A Likely Scenario
Consider an individual who suffers a sudden and severe stroke, making them unable to communicate or make decisions. With a Lasting Power of Attorney in place, their family members may be able to manage their financial affairs, access their bank accounts, pay bills, or make critical medical decisions on their behalf.
In such a situation, the family may need to apply for a court-appointed deputyship, which can be time-consuming, costly, and cumbersome. However, if the individual had previously appointed a trusted donee through a Lasting Power of Attorney, the designated donee would have the legal authority to manage the individual’s affairs and make decisions on their behalf, ensuring their interests are protected without the need for court intervention.
This highlights the importance of having a Lasting Power of Attorney to safeguard one’s interests and welfare, even during unexpected circumstances.
Understanding Lasting Power Of Attorney
Property & Affairs LPA
This type of LPA allows the appointed donee(s) to decide on matters related to the individual’s property, finances, and affairs. This can include managing bank accounts, paying bills, buying or selling property, and making financial investments on behalf of the individual.
It grants the appointed donee(s) the authority to act in the individual’s best interests and make important financial decisions when they cannot do so themselves.
Personal Welfare LPA
This type of LPA empowers the appointed donee(s) to decide on the individual’s welfare and healthcare matters. This can include decisions related to medical treatment, living arrangements, and day-to-day care.
The appointed donee(s) will have the authority to make decisions that promote the individual’s welfare and well-being according to the individual’s known wishes, values, and beliefs.
It’s important to note that both types of LPAs can be created separately or together, depending on the individual’s needs and preferences. It’s crucial to carefully consider and discuss the scope and powers of the LPA with a qualified legal professional to ensure that it aligns with the individual’s wishes and requirements.
Who Can Become A Donee?
There are two main types of Donees, professional and non-professional.
A Professional donee is someone who is paid to perform the service. They can either be individuals or organisations and are sometimes assigned by the court. One consideration is that the professional donee cannot be related to the donor by blood or marriage.
In contrast, a non-professional donee is an individual over 21 years old that the donor has selected. They perform the service without any remuneration.
When Does A Person Lose Mental Capacity?
In Singapore, the determination of mental capacity is based on the Mental Capacity Act (MCA). According to the MCA, a person is considered to lack mental capacity when they cannot make specific decisions due to an impairment or disturbance in the mind or brain functioning.
This impairment or disturbance may be temporary or permanent, and it may result from various conditions, including but not limited to the following:
- Mental illnesses such as dementia, Alzheimer’s disease, schizophrenia, or other cognitive impairments.
- Intellectual disabilities or developmental disorders.
- Brain injuries or conditions that affect cognitive functions.
- Conditions that cause unconsciousness or impairment of consciousness.
- Any other condition that affects a person’s ability to make reasoned decisions.
It’s important to note that mental capacity is determined on a case-by-case basis, and medical professionals or other qualified assessors may assess it. The lack of mental capacity is crucial when creating a Lasting Power of Attorney (LPA) in Singapore, as the LPA is meant to take effect when the donor lacks the mental capacity to make decisions.
It’s essential to seek legal advice and guidance from a qualified legal professional to ensure that the LPA is properly created and aligned with the legal requirements related to mental capacity in Singapore.
Benefits Of Lasting Power Of Attorney
There are numerous benefits of having a Lasting Power of Attorney (LPA) in Singapore. They can provide peace of mind for individuals who want to ensure that their personal and financial affairs are managed according to their wishes. Some of the key benefits include:
- Ensuring your personal and financial affairs are managed according to your wishes. With an LPA, you can specify your preferences and instructions for how you want your personal and financial matters to be handled if you become mentally incapacitated. This allows you to control your affairs even when you cannot decide for yourself, ensuring your wishes are respected and followed.
- Appointing trusted individuals to make decisions on your behalf. Through an LPA, you can nominate one or more trusted individuals, known as your “donees,” to act as your attorneys and make decisions on your behalf when you lack mental capacity. These individuals can be family members, friends, or professionals familiar with your values, preferences, and interests. They can make decisions that are in your best interests.
- Avoiding potential disputes and conflicts among family members. Having an LPA can help prevent potential disputes and conflicts regarding your personal and financial matters. By specifying your wishes and appointing trusted individuals to act as your attorneys, you can provide clear instructions and guidance, minimising the likelihood of disagreements or conflicts arising among family members during a difficult time when you cannot make decisions for yourself.
Activating The Lasting Power Of Attorney
Activating a Lasting Power of Attorney (LPA) in Singapore involves several steps.
Mental Capacity Assessment
The LPA can only be activated if the donor is assessed to lack mental capacity by a registered medical practitioner or a licensed mental health professional.
Notification Of Activation
Once the donor is assessed to lack mental capacity, the donee(s) must provide written notice to the Office of the Public Guardian (OPG) within seven days of the assessment. This triggers the activation of the LPA.
Confirmation Of Activation
The OPG will notify the donee(s) and other relevant parties, such as the donor’s family members, of the activation of the LPA.
Exercise Of Authority
Upon activation, the donee(s) can start exercising the authority granted by the LPA to make decisions on behalf of the donor following the scope of authority specified in the LPA.
Compliance With Legal Requirements
The donee(s) must comply with the legal requirements and restrictions set out in the LPA, including the provisions related to restraint, medical treatment, nominations, property management, and gift-making, as specified in Sections 13 and 14 of the Mental Capacity Act.
The donee(s) must keep records of all transactions and decisions made on behalf of the donor, including financial transactions and decisions related to the donor’s welfare.
It’s crucial to follow the proper steps for activating an LPA to ensure that the donee(s) can legally and effectively exercise the authority granted by the LPA on behalf of the donor. Consulting with professionals with relevant expertise and understanding the legal requirements and responsibilities associated with activating an LPA is advisable.
Limitations, Scope, And Controversies
The restrictions and scope of a donee’s authority under a Lasting Power of Attorney (LPA) in Singapore are governed by Sections 13 and 14 of the Mental Capacity Act. These restrictions and conditions may include:
- Restraining the donor. The donee must not restrain the donor except to the extent necessary to prevent harm to the donor or others.
- Medical treatment or healthcare of the donor. The donee cannot consent to or refuse medical treatment or healthcare on behalf of the donor, except in limited circumstances and subject to certain requirements.
- Nominations under the Insurance Act. The donee cannot make or change nominations of insurance policies on behalf of the donor.
- Execution of wills for the donor. The donee is not authorised to execute or revoke a will on behalf of the donor.
- Making or changing CPF nominations. The donee cannot make or change Central Provident Fund (CPF) nominations on behalf of the donor.
- Dealing with the donor’s property. The donee’s authority to deal with the donor’s property is limited to the specific powers granted in the LPA, and the donee must act in the donor’s best interests.
- Making gifts out of the donor’s property. The donee’s authority to make gifts out of the donor’s property is also limited to the powers granted in the LPA, and some strict conditions and requirements must be met.
Concerns And Controversies Surrounding LPAs In Singapore
There have been cases where donees misused LPAs to exploit the donor’s assets or make unauthorised financial decisions for personal gain, leading to financial abuse.
Conflict Of Interests
LPAs may result in conflicts of interest among family members or other appointed attorneys, especially in cases where there are disputes over the donor’s personal or financial matters.
There have been legal challenges related to the validity of LPAs, such as disputes over the donor’s mental capacity when creating the LPA or allegations of coercion or fraud in obtaining the LPA.
Lack Of Clarity In Lpa Provisions
Some LPAs may need clearer or more comprehensive provisions, leading to confusion or disputes among the parties involved.
There may be concerns about the privacy and confidentiality of the donor’s personal and financial information, as LPAs require sharing such information among the donor, attorneys, and relevant parties.
Revoking The Lasting Power Of Attorney
Revoking a Lasting Power of Attorney (LPA) in Singapore can be done through several methods.
Revocation By The Donor
The donor can revoke the LPA at any time, as long as the donor has the mental capacity to do so. The revocation must be done in writing, signed by the donor, and witnessed by a person who is not the donee or a family member of the donee.
Revocation By The Donee
The donee can also revoke the LPA by giving written notice to the donor, the Office of the Public Guardian (OPG), and any other relevant parties, such as financial institutions or healthcare providers.
Death Of The Donor Or Donee
The LPA is automatically revoked upon the death of the donor or the donee. It’s important to note that the LPA cannot be used after the donor’s death or the donee.
In certain circumstances, the court may revoke an LPA if it is satisfied that the LPA was created or activated fraudulently, under duress, or inappropriately.
It’s essential to follow the proper legal procedures for revoking an LPA to ensure that the revocation is valid and legally recognised. Consulting with a qualified legal professional and understanding the legal requirements and implications of revoking an LPA is advisable.
Conclusion On Lasting Power Of Attorney In Singapore
In conclusion, having a Lasting Power of Attorney in Singapore is crucial to future-proofing one’s personal and financial affairs. The benefits of having an LPA are significant, including ensuring that your affairs are managed according to your wishes, appointing trusted individuals to make decisions on your behalf, and avoiding potential disputes and conflicts among family members.
It is important to note that creating an LPA requires careful consideration and planning, and the legal requirements must be met. We encourage everyone to seek legal advice and consider creating an LPA to secure their future.
With proper planning and foresight, you can have peace of mind knowing that your affairs will be managed following your wishes, even if you lack the mental capacity to do so.
Frequently Asked Questions About Lasting Power Of Attorney In Singapore
What Is A Lasting Power Of Attorney?
A Lasting Power of Attorney (LPA) is a legal document that allows you to appoint one or more persons to make decisions and act on your behalf if you lose the mental capacity to make decisions for yourself.
Who Can Create An Lpa?
Any person who is 21 years of age or older and has mental capacity can create an LPA in Singapore.
What Decisions Can Be Made By My Appointed Donee Under The Lpa?
The donee(s) appointed in the LPA can make decisions concerning your welfare, such as medical treatment and daily care, as well as your property and financial affairs, such as managing your assets and finances.
Can I Appoint More Than One Donee In My Lpa?
Yes, you can appoint more than one donee in your LPA. You can specify whether they should act jointly or jointly and severally and specify the order of priority in case the appointed donees cannot act.