What is a Lasting Power of Attorney?
A Lasting Power of Attorney (LPA) is a legal document which allows a person (known as the “donor”) to appoint one or more persons (known as the “donee(s)”) to make decisions and act on his behalf if he loses mental capacity one day. The donor should be at least 21 years old and have the necessary mental capacity to make a LPA.
Simply put, mental capacity refers to an individual’s ability to make a decision on his own at the time the decision needs to be made.
LPAs became available only in 2010 in Singapore
The LPA was introduced in 2010 under the Mental Capacity Act. In 2015, official changes made to the LPA application process, such as simplifying the LPA form and allowing submissions via mail, has resulted in the number of LPAs made to increase by nearly 160%.
Despite this dramatic increase, the overall number of LPA applicants remain low. The Straits Times reported at the end of 2016 that only 1% of the adult resident population in Singapore, or about 35,000 people, have applied for an LPA.
Certainly, more can be done to encourage Singaporeans to get their LPA done.
A misconception – LPAs are only for the elderly
When the Lasting Power of Attorney (LPA) was made available in 2010, I thought to myself it was mainly for the elderly.
Local research affirms this view. According to the latest Well-being of the Singapore Elderly (WiSE) study conducted by the Institute of Mental Health (IMH), one in 10 people aged 60 and above in Singapore has dementia. The results of this study, funded by the Ministry of Health and the Singapore Millennium Foundation, which involved about 5,000 elderly and their caregivers over a period of three years, are cause for concern. In 2012, a total of 28,000 Singaporeans above the age of 60 had dementia. This number is expected to rise to 80,000 by 2030, as Singapore’s population continues to age.
Younger people are also at risk and might want to consider making a LPA when drawing up their wills
What surprised me was the rise in incidents of Young Onset Dementia. Four times as many younger people were diagnosed with dementia since 2011, the National Neuroscience Institute (NNI) has revealed. It had 27 patients under 65 in 2011 and 121 in 2015, though the reasons for the “alarming” rise are not yet fully understood.
The observable trends, coupled with the not uncommon news of sudden illness and tragic accidents suffered by younger folks, helped me realize that it all adults should also do their LPA when doing their Will.
Recap — Wills
Most of us know that a Will is a document that appoints an executor and beneficiaries so that the deceased’s assets can be distributed according to the Will. But what about the period of time when you are alive, but lack mental capacity which prevents you from managing your personal affairs (e.g. medical decisions) and assets?
More compelling reasons to appointing an LPA early
The average life expectancy of Singaporeans is 82.4 years, according to the Department of Statistics. If a person has dementia in their 70s, that could mean a decade of not being able to manage their own personal affairs e.g. deciding on medical treatment, using Medisave, receiving insurance pay outs, renting out /selling shares or HDB flat etc.
With life expectancy set to increase and the incidence of dementia also on the rise, it really does make a lot of sense to do your LPA with your Will.
Authorizing a donee through a LPA is affordable
Citizens, Permanent Residents (PRs) and foreigners can do a LPA to authorize a donee(s) to manage their personal affairs and assets in Singapore. The registration fee of $75 per LPA payable to the MSF for citizens has been waived until 31 August 2018. Many expect the waiver to end by then as the waiver has been in place since 2010 and the fee was originally $50.00. Currently PRs pays $100.00 and foreigners pay $250.00.
Appointing donees in your LPA
Most people appoint their spouse as the first donee and adult child as replacement donees. LPA Form 1 allows you to choose up to 2 donees ad you should complete the Forms yourself. If you wish to have more than 2 donees you should use LPA Form 2 and you are required to appoint a lawyer to draft the LPA for you.
Possible to have more than one donee
If you wish to have 2 donees, you should note that you have the option of choosing 2 dones to act jointly or jointly and severally. Joint means that both donees must decide together so that if one is unable or unwilling to agree no decision can be reached. This also means that if one joint donee dies the LPA is not valid anymore and a new one must be made. Joint and several donees is more flexible and allows either one of your 2 donees to make a decision.
Must be witnessed
The donor’s signature must be signed in the presence of a Certified Issuer, either a practicing lawyer or a certified doctor. The donee’s signature can be witnessed by an adult at least 21 years old and not a party to the LPA.
Once signed and dated the LPA must be submitted to the Office of the Public Guardian (OPG) within 6 months otherwise it will not be accepted.
Changing donees
If you wish to change your donee(s) after you signed it, you are required to first revoke you existing LPA and then do a fresh one.
Mental Capacity Act can help in cases where no LPA was done up
Where no LPA has been done by and the person is adjudged to lack mental capacity, the only option for the family who wishes to obtain the legal power to make decisions is to apply to Court to be appointed a Deputy under the Mental Capacity Act.
This is an application to the Family Court to authorize a person to be given powers to make decisions for the person lacking mental capacity (the Patient). In summary, the Court requires:-
- A specialist (neurologist or psychiatrist) medical report confirming whether the Patient lacks mental capacity including the following:-
- Distinguish clearly between observations or conclusions based on information given to the doctor and those that are based on the doctor’s examination of the Patient;
- Contain a clear opinion as to whether the Patient lacks capacity in relation to the matters specified in the application;
- Be current and shall not be made more than 6 months before the date of the application;
- Contain a clear opinion on Patient’s prognosis.
- all persons who have cared for the Patient and/or family members to consent to the application;
- Full and frank disclosure of the applicants financial status e.g. bankruptcy, legal suits etc;
- Full and frank disclosure of the Patient’s expenses and assets;
- The specific powers applicant requires in relation to Patient’s assets.
This court application would no doubt cost more and take longer to complete compared to doing a LPA.
Summary
- A Lasting Power of Attorney (LPA) allows a “donor” to appoint one or more “donee(s)” to make decisions and act on his behalf if he loses mental capacity one day
- In case of sudden illness and tragic accidents, all adults should make their LPA when making their Will
- Donors using LPA Form 1 can:
- Choose up to 2 donees
- Choose to have 2 donees act jointly (both must decide together) or jointly and severally (allows either one of the 2 to make a decision)
- Change donee(s) by revoking their existing LPA and creating a fresh one
- While donors must sign the LPA in the presence of a Certified Issuer, it is acceptable for donees to sign in the presence of an adult who is not a party to the LPA
- You can apply to court under the Mental Capacity Act to legally make decisions for your family member, but this process is more costly and time-consuming compared to doing an LPA
Get legal guidance from Fung Peen on making an LPA
If you like to seek legal advice on making an LPA or any other matter related to wills, probates and trusts, you can book a Quick Consult with Lim Fung Peen. When you get an AsiaLawNetwork Quick Consult, Fung Peen will call you back within 1-2 days for a transparent, flat fee starting at S$49 to answer your questions and give you practical legal guidance and advice.
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.