What is a Lasting Power of Attorney (LPA)?
A person who is at least 21 years old (the "Donor") may freely name one or more people (the "Donee(s)") to make decisions and act on his or her behalf in the event that he or she loses mental ability. Personal welfare and property & affairs issues are the two main areas in which a Donee may be appointed to act.
The LPA designates one or more individuals (referred to as the donees) to act and make decisions on behalf of the donor, who is the party that drafts the LPA.
Advantages of an LPA
An LPA enables a person to choose a trusted proxy decision maker on their own terms, one who is capable of acting in their best interests should they ever lose their mental capacity.
An LPA reduces the stress and challenges faced by family members who must request a Deputyship order in the event that the person loses their mental capacity without an LPA in place.
Since the end of March 2018, approximately 43,000 persons had submitted LPA applications. A power of attorney can be used in a variety of situations, and the living will power of attorney (LPA) is one unique type that is appropriate when a person loses mental capacity.
In Singapore, when is someone considered to be mentally incompetent?
A person is deemed to lack capacity under the Mental Capacity Act 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”.
Whether the impairment or disturbance is permanent or momentary has no influence.
As a result of things like developing dementia, having a stroke, or receiving brain trauma in an accident, a person may lose their mental capacity.
A Lasting Power of Attorney: Why Should Anyone get One?
In the absence of an LPA, a court order would be required to manage the affairs of a person without mental capacity. This court order designates a person to serve as the person's court-appointed deputy to handle their affairs while they are mentally challenged.
With an LPA, you can avoid the inconvenience of obtaining a court order, which can be an expensive and time-consuming process. Furthermore, unlike an LPA, you have no control over who is chosen to represent you when a deputy is nominated.
Be aware, though, that LPAs created in Singapore will not be accepted elsewhere and vice versa. You might also want to create an LPA (or equivalent document) in other nations if you spend a lot of time abroad and/or have property there.
Difference Between a Will and a Lasting Power of Attorney
A will only takes effect after the will creator passes away. When the donor no longer has mental capacity, the LPA kicks in.
The distribution of a person's assets following his death is another issue that is not covered by the LPA. If the deceased did not leave a will, this will be decided in accordance with the terms of his will or the laws of intestacy.
Who Can Be a Donee in Singapore?
There are professional and non-professional donees in Singapore:
Professional donee
Legal professionals and social workers are two examples of professional donees. Professional donees, however, cannot be married to or connected to the donor through blood.
Only the donor's property and affairs can be managed by professional donees who are organizations.
Unqualified donee
Non-professional donees are those who do donee duties unpaid.
These people need to be at least 21 years of age. Undischarged bankrupts are not permitted to handle the donor's assets or business concerns.
The Donee's Power
As suggested previously, the donee is given the power to decide on the donor's financial, property, and/or personal welfare. This covers the donor's living arrangements and medical care needs.
The donee may also have access to your bank accounts on your behalf under the LPA.
Responsibilities of the Donee of a Lasting Power of Attorney
The donee is obliged to behave in the donor's best interest when using the LPA's powers.
While acting in the donor's best interests, the donee must take into account a number of factors that are outlined in Section 6 of the Mental Capacity Act. As an illustration, the donee should:
Assess the donor's previous and current preferences and sentiments
Speak with those who the donor has already designated as people to speak with about a particular issue
The government agency in charge of carrying out the Mental Capacity Act's administration, the Office of the Public Guardian (OPG), has the authority to look into situations in which the donee fails to act in the donor's best interests.
Furthermore, the LPA document itself may also contain limitations or conditions limiting the donee's authority.
In cases where the donor regains mental competence, the donee should relinquish control to the donor. The LPA, however, is still in effect.
Legislative Limitations on a Donee's Powers
The Mental Capacity Act's Sections 13 and 14 lay forth a number of limitations and criteria that place limits on a donee's power. They are connected to:
Execution of wills for the donor
Nominations under the Insurance Act
Restraining the donor
Making gifts out of the donor’s property
Making or changing CPF nominations
Medical treatment or healthcare of the donor
Dealing with the donor’s property; and
Alternatively, if the donor had written an Advance Medical Directive (AMD), the donee would not be permitted to act in the donor's place according to the AMD's provisions.
If a person becomes critically ill and is unable to make logical decisions, they can create an AMD to indicate that they do not wish to extend their lives via extraordinary life-sustaining treatment.
How to Make an Application for a Lasting Power of Attorney in Singapore
In Singapore, there are three primary procedures to requesting a last power of attorney:
Complete the relevant form.
Get the form certified.
Apply for a Lasting Power of Attorney and register it.
1. Complete the relevant form.
Two forms are presented by the OPG on its website:
The basic version of the form, Form 1, gives the donees broad authority with minimal limitations.
If you want to modify certain rights to be granted to your donee, you should use Form 2. The powers must be written down by a lawyer, who must then attach these terms as an annex to Form 2.
2. Get the form certified.
You should locate a certificate issuer to certify the form for you after completing either Form 1 or Form 2.
This certification procedure is to attest to your understanding of the LPA's goals and potential outcomes. Also, it makes sure that the donor was not coerced into making the LPA by deception or excessive pressure.
A psychiatrist, a licensed doctor, or a practicing lawyer are all acceptable candidates to issue certificates. The attorney who created the LPA's powers can probably also certify the LPA if you are utilizing Form 2.
For certification, the certificate issuer will often charge a fee.
3. Apply for a Lasting Power of Attorney and register it.
Within six months following your signature, you must mail your LPA application to the OPG. The postal address for OPG is:
Singapore 159053 20 Lengkok Bahru #04-02 Family Enabling Village
Your payment and other information will then be requested from you by OPG.
If the OPG accepts your application and the obligatory 3-week waiting period has passed, your LPA will be registered if no legitimate objections to it are received.
Your LPA will be delivered to you electronically. For $25, you can also order a hard copy of the LPA that is also an authenticated copy if necessary.
For Singaporean citizens registering via Form 1, the $75 LPA application cost has been waived by the OPG till 31 March 2023. The $200 application fee is for Form 2.
In order to apply for an LPA using Form 1, Permanent Residents and Foreigners must pay $100 and $250, respectively. In order to file for an LPA using Form 2, they must pay $250 and $300, respectively.
How to Use a Lasting Power of Attorney
1. Have a doctor testify the donor’s mental health condition
Take the donor to a licensed physician to receive a medical certificate attesting to the donor's mental health in order to activate an LPA. The OPG website provides access to this medical certificate, which is also known as the Medical Report Template for LPA Transactions.
The LPA has to be with you when you visit visit the doctor with your donor.
2. Communicate directly with the appropriate institution for the transaction you wish to complete.
For instance, you should contact the donor's bank if you want to manage their bank account.
You must be ready to show the institution your LPA document when you contact it (either a hard copy or a soft copy, or a certified true copy of it from the OPG).
Depending on the institution's internal operational procedures for activating LPAs, additional documents may also be needed. You might additionally need to bring, for instance:
Identification of the donor, like an NRIC
Medical Report Form for LPA Transactions, completed
Thus, before traveling there, you should call and ask.
You might also need to produce a recent medical report (6 months or less) if you're dealing with a bank. If the donor's condition is persistent and their most recent medical report shows that they are permanently mentally impaired, you might not need a more current one.
3. The organization confirms the LPA's legitimacy.
The institution will confirm the validity of the LPA with the OPG after receiving the necessary documentation.
The institution will permit you to conduct transactions on the donor's behalf if the validity of the LPA has been established.
How to Revoke a Lasting Power of Attorney
Under certain circumstances, as described in section 15 of the Mental Capacity Act, the LPA may be withdrawn. Most crucially, the donor has the option to withdraw the LPA in cases where he regains mental competence.
How to Lift a Lasting Power of Attorney
Anyone may ask the court to lift an LPA, such as a donor's relative. The following conditions must be met for the Singapore court to be able to revoke or lift the LPA:
if the donor created the LPA as a result of fraud or undue pressure; or
the situation in which the donee acts, is doing, or proposes to act in a manner that would go against his authority or not be in the donor's best interests.
By virtue of section 42 of the Mental Capacity Act, a donee of an LPA may be subject to harsh penalties, such as a fine and imprisonment, if the donor is mistreated.
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