What is a Lasting Power of Attorney?
Under section 11 of the Mental Capacity Act (Cap. 177A), a lasting power of attorney (LPA) is a power of attorney under which the donor confers on the donee(s) authority to make decisions about all or any of the following:
(a) the donor’s personal welfare or specified matters concerning the donor’s personal welfare;
(b) the donor’s property and affairs or specified matters concerning donor’s property and affairs,
when the donor no longer has capacity to make such decisions.
The donee is given legal authority to make decisions about the donor’s personal welfare and/or property and financial matters. This includes where a donor is to live, how he is to be medically treated or cared for (if the LPA expressly provides for this), but not the carrying out or continuation of life-sustaining treatment. The donee will also be granted access to the donor’s bank accounts, authorised to make expenditures on behalf of the donor. The donee cannot make nominations under the Insurance Act on behalf of the donor, execute wills on behalf of the donor or deal with the donor’s CPF money. The donee may only make gifts of the donor’s property if expressly authorised under the LPA to do so.
Under section 4 of the Mental Capacity Act, a person is defined to lack capacity “if at the material time 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”, regardless of whether the impairment or disturbance is permanent or temporary. Section 5 provides that “a person is unable to make a decision for himself if he is unable —
(a) to understand the information relevant to the decision;
(b) to retain that information;
(c) to use or weigh that information as part of the process of making the decision; or
(d) to communicate his decision (whether by talking, using sign language or any other means).”
Instances where a person may lose mental capacity include dementia, stroke, coma. Third parties dealing with a donor’s property may require a donee to produce a certificate from a registered medical practitioner stating that the donor’s lack of capacity is likely to be permanent (section 13(10) of the Act).
A donee must be an individual above 21 years of age or if the donee’s power only relates to dealing with the donor’s property and affairs, a donee may also include a licensed trust company (see Regulation 5 of Mental Capacity Regulations 2010). A donee may not be an undischarged bankrupt.
More than 1 donee may be appointed under an LPA. They may be appointed jointly, or jointly and severally, or jointly on some matters and jointly and severally on some other matters. Unless stated otherwise, they are deemed to act jointly. A donee cannot have a power under the LPA to appoint a substitute or successor donee. But an LPA may appoint someone to replace a donee.
Benefits of LPA
Without a LPA, when a person loses mental capacity, a time-consuming and expensive court application under the Mental Capacity Act will be necessary to seek the court to appoint deputies to act on behalf of, and manage the affairs of, the person. This can become contentious as various family members or loved ones fight over who should be appointed the deputy, among other issues. An LPA therefore avoids such problems.
It should be noted that an LPA is different from other types of Powers of Attorney or a will. A will operates only upon the person’s death whereas the LPA operates after the person loses his mental capacity but before his death. The LPA does not deal with the distribution of a person’s assets after his death. Other types of Powers of Attorney are addressed elsewhere.
Execution
An LPA must be executed in the proper prescribed form, and may only be executed by a person who is above 21 years of age and who has mental capacity at the time of executing the LPA.
A prescribed person (e.g. a qualified psychiatrist, a qualified doctor accredited by the Office of the Public Guardian or a practising advocate & solicitor) must also certify in a prescribed form that the donor understands the purpose and contents of the LPA and that no fraud or undue pressure or undue influence was exerted on the donor. The certifying person must not be: (i) a family member of the donor; (ii) a donee under the LPA; (iii) a donee of any other LPA executed by the donor; (iv) a family member of a donee; (v) a director or an employee of a person other than an individual acting as a donee; (vi) a business partner or an employee of a donor or donee; (vii) an owner, a director, a manager or an employee of any care facility where the donor lives or is cared for when the instrument is executed; and (viii) any family of such a person mentioned in (vii).
The LPA must then be properly registered with the Office of the Public Guardian. A fee may have to be paid to the Office of the Public Guardian for the registration application.
Notification and Objections
When an LPA registration application has been made with the Office of the Public Guardian by a donor or donee, the Public Guardian will notify the donor or the donee as the case may be.
Where a deputy has already been appointed by the court for a donor under the Mental Capacity Act and the powers conferred by the LPA on the donee conflicts with the powers of the deputy, the Office of the Public Guardian will not register the LPA unless directed by the court.
A donee appointed under an LPA will receive notice from the Office of the Public Guardian that he has been appointed under the LPA as such. He may object to being appointed as a donee. In that event, he must notify the Office of the Public Guardian of his objections within a prescribed period. The prescribed period is presently 6 weeks (as at the time of writing of this article).
A person may also receive notice from the Office of the Public Guardian that an LPA registration application has been made in respect of him. He may then object to the application within the prescribed period.
Objections may be made on the following grounds (Regulation 15 of the Mental Capacity Regulations 2010):-
(a) that one or more of the requirements for the creation of a lasting power of attorney have not been met;
(b) that the donee power has been revoked, or has otherwise come to an end, on the grounds set out in paragraph 12(1) of the First Schedule to the Act (section 15(3) and 5(a)-(d) of the Act) or some other grounds;
(i) the donor’s bankruptcy as this would revoke the donee’s powers in relation to the donor’s property and affairs;
(ii) the donee disclaims the appointment;
(iii) death or bankruptcy of the donee or, if the donee is a person other than an individual, its liquidation, winding-up, dissolution or being under judicial management;
(iv) dissolution or annulment of a marriage between the donor and the donee, unless the LPA expressly provides otherwise;
(v) lack of capacity of the donee;
(c) any of the grounds set out in paragraph (a) or (b) of section 17(3) of the Act, i.e.
(i) fraud or undue pressure was used to induce the donor to execute the LPA or any document to create the LPA; or
(ii) a donee has behaved, or is behaving, in a way that contravenes his authority or is not in the donor’s best interests; or
(iii) a donee proposes to behave in a way that would contravene his authority or would not be in the donor’s best interests.
Termination and Revocation
An appointment of a donee under an LPA may be terminated, or powers of the donee may be revoked, in the event of certain conditions (section 15 of the Act).
The donor may, at any time when he has capacity to do so, revoke a donee’s power. The donor must notify the donee and the Office of the Public Guardian of the revocation (Regulation 21 of the Mental Capacity Regulations 2010). The donor’s bankruptcy revokes the power so far as it relates to the donor’s property and affairs. The donor’s death revokes the LPA (Regulation 22 of the Mental Capacity Regulations 2010).
The occurrence of the following events terminates the appointment of a donee and revokes his power:-
(a) the disclaimer of the appointment by the donee in accordance with such requirements as may be prescribed for the purposes of this section in regulations made under this Act;
(b) the death or bankruptcy of the donee or, if the donee is a person other than an individual, its liquidation, winding-up, dissolution or being under judicial management. However, the bankruptcy of a donee does not terminate his appointment, or revoke the power, in so far as his authority relates to the donor’s personal welfare;
(c) the dissolution or annulment of a marriage between the donor and the donee. However, this is not applicable if the instrument expressly provided that it was not to do so (section 15(8) of the Act);
(d) the lack of capacity of the donee.
The occurrence of the following events terminates the appointment of a donee but does not revoke his power:-
(a) the donee is replaced under the terms of the LPA;
(b) he is one of 2 or more persons appointed to act as donees jointly and severally in respect of any matter and, after the event, there is at least one remaining donee.
Court Intervention and Management
Under section 17 of the Act, the court may determine any question relating to:-
(a) whether one or more of the requirements for the creation of a lasting power of attorney have been met;
(b) whether the power has been revoked or has otherwise come to an end.
And where the court is satisfied —
(a) that fraud or undue pressure was used to induce P —
(i) to execute an instrument for the purpose of creating a lasting power of attorney; or
(ii) to create a lasting power of attorney; or
(b) that the donee (or, if more than one, any of them) of a lasting power of attorney —
(i) has behaved, or is behaving, in a way that contravenes his authority or is not in P’s best interests; or
(ii) proposes to behave in a way that would contravene his authority or would not be in P’s best interests.
the court may —
(a) direct that an instrument purporting to create the lasting power of attorney is not to be registered; or
(b) if P lacks capacity to do so, revoke the instrument or the lasting power of attorney.
If there is more than one donee, the court may revoke the instrument or the lasting power of attorney so far as it relates to any of them.
The court may determine any question as to the meaning or effect of a lasting power of attorney or an instrument purporting to create one.
The court may —
(a) give directions with respect to decisions —
(i) which the donee of a lasting power of attorney has authority to make; and
(ii) which the donor lacks capacity to make;
(b) give any consent or authorisation to act which the donee would have to obtain from the donor if the donor had capacity to give it.
The court may, if the donor lacks capacity to do so —
(a) give directions to the donee with respect to the rendering by him of reports or accounts and the production of records kept by him for that purpose;
(b) require the donee to supply information or produce documents or things in his possession as donee;
(c) give directions with respect to the remuneration or expenses of the donee;
(d) relieve the donee wholly or partly from any liability which he has or may have incurred on account of a breach of his duties as donee.
The court may authorise the making of gifts which are not within section 14(3) of the Act.
For information regarding appointing a deputy or applications to court to make decisions relating to a person lacking capacity under the MCA, click here.
If you need a Singapore lawyer to help you do a Lasting Power of Attorney (LPA) or apply for deputyship under the Mental Capacity Act, feel free to contact me.