What would you do, if you could not move any part of your body, but were fully aware of your surroundings – and the only movement that could be observed by others, was the blinking of your eyes? As the result of a massive stroke suffered at age 43, French journalist Jean-Dominique Bauby became physically paralyzed with “locked-in” syndrome. With his right eye sewn up due to an irrigation problem, Jean-Dominique Bauby went on to write his memoir using partner assisted scanning, which required him to blink to select a letter. The book took 10 months and 200,000 blinks of his left eye and he died two days after its publication.
In many ways, Jean-Dominique Bauby was luckier than many other stroke patients because he was lucid and able to communicate his wishes. In fact, many patients who have suffered traumatic head injuries or other illnesses that cause damage to the brain become permanently mentally disabled, never regaining simple mental functions and depending on others for simple tasks such as dressing and feeding. To decide whom you wish to depend on in such situations can be distressing. Yet, precisely because these decisions are difficult, we cannot afford to wait until it is too late.
Making a legal document, such as a will, requires mental capacity. Mental capacity refers to the ability of the person to make a specific decision (for e.g. making a choice between treatment or non-treatment) at a certain time (for e.g. when the doctor has explained the prognosis of a disease). The Mental Capacity Act which came into operation on the 1st of March 2010, empowers those with the capacity to plan ahead for a time when they may lack the ability to make these decisions, including matters of personal welfare and financial matters. The document that needs to be prepared for this set of instructions is known as the Lasting Power of Attorney (“LPA”).
The LPA is not a will. A will comes into effect upon death, whereas an LPA comes into effect when the donor exhibits a lack of mental capacity, which can be confirmed with a formal assessment conducted by a registered medical practitioner or specialists in mental health such as psychiatrists. Sometimes, a person’s mental capacity is declining but they still have lucid moments. This is known as fluctuating capacity and we must be careful to distinguish between an unwise decision and the inability to make a decision.
The LPA is also not an Advance Medical Directive which tells the doctor who is treating you for a terminal illness that you do not wish to have medical procedures that will only prolong the process of dying when death is imminent. In the event of certain diseases that causes progressive mental deterioration, there may be a long period (think 10 – 15 years) before death and you would want to ensure that your donee is fully aware of how you wish to be cared for.
Donees, unlike deputies, are nominated by you. Similar to deputies, who are appointed by the court, donees are authorised to act on your behalf under the law of agency and are bound to always act in the best interests of the person relying on their care and to the benefit of that person and not themselves. This is known as “fiduciary duty”. The person you wish to nominate should be able to perform this duty and, therefore, it should be someone you know well enough – who knows what “best interests” constitutes for you.
You may have more than one donee – for e.g. property & affairs donee & personal welfare donee. This happens when you feel comfortable with one being in charge of your lifestyle related decisions but would prefer if someone else is handling decisions relating to property & affairs matters. You may also decide if decisions for you are to be made jointly or jointly and severally. As these are trust issues related to the relationships between you and your donees, you must consider carefully how each donee may feel – for e.g. having to seek the permission of the other in order to make a decision for you (under “jointly”).
The best discussions are made when everyone is calm and rational. Going through documents can help you and your loved ones understand your wishes and it is best done when there is no immediate pressure to act. In the situation when you have not made any preparation, your loved ones are forced to apply for guardianship through the court and this incurs cost and time. Meanwhile, it could become a point of contention among offsprings, causing family feuds that divide people, even after death.
Please download the LPA application pack from this link.
In it, you will find 9 PDF files. If you wish to, you may read through the first and the second files. The third and the fourth files – (3) LPA Form 1 (2014) and (4) Application Form (2014) are essential for filling up and submitting to the Office of the Public Guardian.
What You Need: Lasting Power of Attorney – Checklist
|LPA: What You Need||Condition|
|a||As the Donor||
|b||Completed Lasting Power of Attorney Form||
|c||Completed Application Form||
|d||LPA Form will have to be witnessed and certified by an LPA certificate issuer|
|e||Clear photocopy of donor’s NRIC||
|f||Clear photocopy of donee’(s’) NRIC||
|g||Clear photocopy of replacement donee’(s’) (if any)||
|h||For the LPA to be valid, it must be registered with the Office of the Public Guardian.||Office of the Public Guardian:
510 Thomson Road #15-03 SLF Building Singapore 298135
The form available above is LPA Form 1 (2014), which is a standard version individuals can use to grant general powers with basic restrictions to their donee(s). If you should require customised powers for your donee(s), and have non-standard requirements, LPA Form 2 will suit your needs better. However, do note that the Annex to Part 3 of the LPA Form 2 has to be drafted by a lawyer.
The application fee is waived for Singapore citizens who make their LPAs using the LPA Form 1 from 1 September 2014 to 31 August 2016. The application fee is S$50.00 for LPA Form 1 for permanent residents, and S$200.00 for other cases and for LPA Form 2. Payment must be made by cheque in local currency made payable to the “AG/MSF”. DO NOT send in your payment with your application. The Office of the Public Guardian will contact you to let you know when you should make the payment.
Acts in connection with care or treatment
These are tasks carried out by caregivers (paid or unpaid), healthcare staff and family members that involve personal care, healthcare or medical treatment for a person who lacks the capacity to consent to these acts.
Advance Medical Directive
The Advance Medical Directive is a legal document you sign under a separate law called the Advance Medical Directive Act that tells the doctor who is treating you for a terminal illness that you do not wish to have medical procedures that will only prolong the process of dying when death is imminent.
An agent is a person authorised to act on another person’s behalf under the law of agency. Donees and deputies are agents and they have legal duties to follow.
Decision makers have a duty to consider many factors that focus on what is best for the person lacking capacity before making a decision on his behalf.
The term “care facility” refers to day centres, homes for the disabled or the aged, and welfare, nursing, rehabilitation and convalescent homes.
Committee of the person or estate
The court appointed these committees, under the Mental Disorders and Treatment Act (now repealed), to make certain decisions on behalf of a person suffering from a mental disorder. Persons serving on existing committees when the Mental Capacity Act came into force on 1 March 2010 automatically became deputies as if they had been appointed by the court under the Mental Capacity Act, with the same powers and functions they were previously accorded under the committees.
The decision maker is the individual or person who makes decisions on behalf of persons who lack capacity. They include caregivers, nurses, doctors, donees of a Lasting Power of Attorney (LPA) and court appointed deputies.
A deputy is appointed by the court to make certain decisions on behalf of a person who lacks mental capacity when the person has not made an LPA and has no donee to decide on his behalf in respect of those decisions. A deputy can be an individual or a licensed trust company for property & affairs matters under the Trust Companies Act (Cap. 336) as prescribed by the Mental Capacity Regulations.
The person, at least 21 years of age, who makes an LPA, appointing donee(s) to take care of his personal welfare and/or property & affairs matters in the event he loses mental capacity one day.
Donees are appointed by donors to make decisions and act on their behalf on personal welfare and/or property & affairs matters in the event the donors lack the mental capacity to manage their own affairs.
This duty is a legal and ethical duty that the donee and deputy must discharge when acting on behalf of the person who lacks capacity. Donees and deputies must always act in the best interests of the person lacking capacity and to the benefit of that person and not themselves.
A person has fluctuating capacity when his mental capacity changes from time to time, for example, when his condition changes from good to bad and bad to good. It is variable. Persons in the early stages of dementia or suffering from schizophrenia may experience fluctuating capacity.
Formal assessment (of mental capacity)
A registered medical practitioner or specialists in mental health, such as psychiatrists, conducts formal assessments of mental capacity. A professional such as an accountant or the donee of an LPA may seek a formal assessment when they have doubts about the person’s capacity and the decision the person has to make is an important one or they anticipate a dispute over the decision.
Human Organ Transplant Act
This Act is a separate law that automatically allows doctors to remove certain organs when you are dead, for transplant to someone else, unless you opted out earlier in writing.
Ill-treatment under the Act is the abuse of persons who are at least 16 years old and who lack capacity or whom the offender reasonably believes to lack capacity. Ill-treatment includes physical abuse, sexual abuse, psychological abuse, neglect and omission.
Jointly (in the context of decision making by donees or deputies)
The donees or deputies must act together and not alone.
Jointly and severally (in the context of decision making by donees or deputies)
The donees or deputies can act together or separately. Both types of decision are valid. Jointly on some matters and jointly and severally on others (in the context of decision making by donees or deputies) This means that the deputies must act jointly on some matters, for example, sale of residential property, but may act separately on other matters, for example, paying household bills.
Lasting Power of Attorney (LPA)
A legal document that allows a donor to voluntarily appoint one or more donees to make decisions and act on his behalf should he lose the capacity to make his own decisions.
Life sustaining treatment is treatment that, in the view of an individual providing health care, is necessary to sustain the person’s life.
Mediation is a method of resolving disputes. An independent third party, called a mediator, helps the parties see each other’s point of view through discussion.
Medical (Therapy, Education and Research) Act
This Act is a separate law that provides a scheme where people can pledge their organs or any body part for the purposes of transplant, education or research after they pass away.
Mental capacity is the ability of a person to make a specific decision at a particular time. The Act introduces a two-stage test to ascertain mental capacity.
Office of the Public Guardian (OPG)
The OPG has a wide range of responsibilities within the framework of the Mental Capacity Act. These include keeping a register of LPAs, supervising deputies and investigating allegations of ill-treatment.
A person suffers from permanent incapacity when the incapacity is long term. Examples include persons in a permanent vegetative state or locked-in syndrome.
Personal welfare donee
A personal welfare donee is an individual appointed under an LPA by the donor to make personal welfare decisions on behalf of the donor when the donor lacks the capacity to make these decisions on his own. Personal welfare decisions are lifestyle related decisions such as where the donor is to live and who may or may not have contact with the donor.
Property & affairs donee
A property & affairs donee is an individual or a licensed trust company under the Trust Companies Act (Cap. 336), as prescribed by the Mental Capacity Regulations, who is appointed under an LPA by the donor to make decisions relating to property & affairs matters when the donor lacks the capacity to make these decisions on his own.
Restraint is the use of, or threat to use, force by an individual to secure compliance with an act, which the person resists, or restricting the person’s freedom to move, whether or not the person resists. A person can be restrained without physical force or threat of physical force being used.
There are five statutory principles under the Mental Capacity Act that everyone must follow when dealing with persons who lack or may lack mental capacity.
This refers to one of the statutory principles. A person who has mental capacity has the right to make a decision that is unwise in the view of others. Just because a decision is unwise does not mean that the person has lost mental capacity.
A will is a legal document that a person signs that directs the distribution of his property when he passes away. This definition includes codicils, which is an amendment to a will.
This glossary is taken from the CODE OF PRACTICE MENTAL CAPACITY ACT (CHAPTER 177A).
This article is written by Sean Nguyen from Asia Law Network.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Interstellar Group Pte. Ltd. accepts or assumes responsibility, or has any liability, to any person in respect of this article.