What is a Lasting Power of Attorney
In this article, we will be sharing some frequently asked questions by our clients in relation to a Lasting Power of Attorney.
What is a Lasting Power of Attorney (referred to as ‘LPA’)?
It is a legal document allowing a person who is 21 years or older (referred to as ‘donor’) to voluntarily appoint one or more persons (referred to as ‘donee(s)’) to make decisions and act on his/her behalf in the event he/she loses mental capacity.
When does someone lack mental capacity?
As defined by Section 4(1) of the Mental Capacity Act (referred to as ‘MCA’), a person lacks mental capacity when he/she is unable to make a decision for him/herself because of an impairment of, or a disturbance in the functioning of, the mind or brain.
What are some conditions that might cause a lack of mental capacity?
Some conditions include but are not limited to stroke, brain injury, dementia, mental health problems and intellectual disabilities.
However, it cannot be assumed that someone suffering from any of these conditions lacks mental capacity. In determining a lack of mental capacity, formal assessments should be administered by registered medical practitioners and specialists in mental health, such as psychiatrists.
What are the benefits of making an LPA?
Some of the benefits when making an LPA are as follows:
- It enables one to choose a reliable and competent individual as a trusted proxy decision maker to act in his/her best interests;
- It allows one to plan and safeguard his/her interests beforehand;
- It alleviates the stress and difficulties faced by one’s family members in the event he/she loses mental capacity. Without an LPA, family members will be required to apply for a Deputyship order, which has its own procedures.
It is important that you do not take for granted the uncertainties and frailties of life. Safeguard your interests today.
Who can make an LPA?
Section 11 of the MCA states the following requirements of one who wishes to make an LPA : -
- At least 21 years old;
- Have the mental capacity to
- make the LPA;
- Not an undischarged bankrupt (if he/she wishes to make an LPA for property & affairs matters).
What is the role of a donee?
A donee can be appointed to act in two (2) broad areas:
- Personal Welfare - Donees are empowered to decide on matters including but not limited to the donor’s residence, daily care decisions and social activities.
- Property and affairs - Donees are empowered to decide on matters revolving around the donor’s property, bank account and monies. This includes but is not limited to tax matters, investments as well as payments regarding the donor’s expenses.
Can anyone be a donee?
There are professional and non-professional donees.
Professional donees are individuals or organisations providing services as donees for a cost. It must be noted that individuals who are professional donees cannot be related to the donor. It is also worth highlighting organisations can only manage matters of property and affairs.
Non-professional donees act as donees without payment and must be at least 21 years old. A non-professional donee who is an undischarged bankrupt cannot manage the donor’s property and affairs.
Are there any matters an LPA do not cover?
Yes. Some matters donees are unable to make a decision on behalf of the donor includes: -
- Decisions on medical treatments;
- A gift of property;
- CPF matters;
- Executing wills;
- Restraining the donor.
How does one make an LPA?
- Fill in the relevant Form
The Office of the Public Guardian (referred to as ‘OPG’) has two forms on its website, also known as Form 1 and Form 2.
- Form 1 is used to grant general powers with basic restrictions to donee(s).
- Form 2 is used when the donor wishes to grant customised powers to their donee(s). It is best a lawyer assist in the drafting of these powers. When in doubt, please do not hesitate to contact our dedicated lawyers for assistance.
- Certify the Form
After the relevant form is prepared, a certificate issuer must sign the Form as the donor’s witness. They must also certify the donor has the mental capacity to make the LPA. This requirement ensures one is aware of the purposes and implications of making the LPA. The certificate issuer also ensures there is no inducement when making the LPA.
Any one of the following professionals in Singapore may be the Certificate Issuer for your LPA:
- A medical practitioner accredited by the Public Guardian;
- A practicing lawyer; or
- A registered psychiatrist
These professionals will typically charge a fee for certifying the LPA.
- Register the LPA application
The LPA application must be submitted to the OPG who will contact you for payment and other details. Thereafter, the OPG will verify your application. Your LPA will generally be registered after three weeks (with effect from 1 August 2019) subject to any valid objections raised.
When can one use the LPA?
The LPA, in either softcopy, hardcopy or certified true copy, must be provided to the relevant third party involved in the transaction or decision made for the donor. Some examples would include banks and insurance companies. They may also require other documents to be provided along with the LPA.