A power of attorney is a legal document allowing one person to appoint another to act on their behalf. The person making the appointment is called the donor and their representative, the donee.
Sometimes, the donee is referred to as the attorney, but this doesn’t mean they have any specific professional legal status; the designation is used purely to reflect the authority of their role granted by the power of attorney.
Donors can be quite specific about the powers they give to a donee.
In Singapore, there are five different types of power of attorney to reflect the different circumstances in which they can be used.
General power of attorney
A general power of attorney (POA) is when the donor gives the donee the authority to act on their behalf in all situations. It can include accessing bank accounts, the power to buy and sell property, and entering contracts on the donor’s behalf.
A general POA can be restricted to certain functions if the donor wishes.
Specific power of attorney
Specific powers of attorney are limited to a defined event or circumstance. For instance, it could be acting on the donor’s behalf whilst they are abroad for an extended period of time.
Lasting power of attorney
A lasting power of attorney (LPA) allows a donor to give authority to the donee should the donor lose mental capacity. An LPA can only be executed by someone at least 21 years old.
An LPA can be extensive and give the donee power to make decisions on property and financial matters, health, and personal welfare.
An LPA must be certificated, which means a designated professional such as a lawyer or appropriate medical professional must certify the donor understands the impact of the LPA and its consequences. The certificating authority is also there to ensure the donor is not under undue pressure or being coerced to execute the LPA. Most people ask the lawyer who has also drawn up the LPA to act as the certificate issuer.
HDB power of attorney
This is the most common type of POA in Singapore and relates to selling, buying, or renting out an HDB flat. It’s used when someone cannot attend document signings, including the sales agreement, lease agreement, deed of assignment, mortgage, or lease-in-escrow. It is also appropriate if there is a requirement to refund monies to the CPF Board.
There are several scenarios where an HDB POA can be helpful. A lawyer must prepare precise wording reflecting the situations where a party cannot attend in person or other specific tasks that the donee needs to perform. It is usual to refer to the donee in this context as the attorney. There are three main types of HDB powers of attorney, and these include:
- Sale, subletting, and general management – an attorney can make decisions concerning the sale or subletting of an HDB flat plus its general care and maintenance.
- Purchase, subletting, and general management – the attorney can handle transactions and make decisions relating to the purchase and subletting of an HDB flat, plus its management and maintenance.
- Subletting and general management – the attorney can only make decisions about the care and maintenance of the flat or subletting it to others.
An HDB power of attorney has a maximum shelf life of six years from its issue date. However, it can be revoked earlier if the donor’s circumstances change. If you are not sure which type of HDB POA suits your circumstances, then an appropriately qualified and experienced lawyer should be able to guide you and execute the document on your behalf.
Springing power of attorney
Sometimes also referred to as a conditional POA, this type of power of attorney is linked to a specific event and only becomes activated if this occurs. For instance, it could be conditional on foreign travel when the donor is away for an extended period and cannot manage their affairs at home in Singapore.
Why make a power of attorney?
Most people don’t think about creating a power of attorney, and many don’t even know they exist. The most common trigger is the management, lease, or sale of an HDB flat, or an extended period of foreign travel. Other than that, it only tends to be people executing their wills who come across the concept. However, a lasting power of attorney can be an excellent safety net for the future, but this type of LPA has to be executed before it becomes apparent that it could be needed; by then, it may be too late.
An LPA allows someone to make advance provision for a time when they may lose their mental capacity during their lifetime, which means they can no longer manage their own affairs and make decisions for themselves. Many people associate losing cognitive ability with old age, dementia, and senility, but this can occur earlier in life via an accident, or illness such as stroke.
An LPA offers the reassurance that should anything untimely or unexpected happen; a person has already nominated someone they know and trust to look after their interests. An LPA can empower someone to make decisions related to personal welfare, care, and/or financial matters.
Revoking a power of attorney
A power of attorney usually remains live unless and until the donor revokes it. The donor’s incapacity or death can have the same effect on the POA, but it can depend on what type of POA the donor has executed. An LPA has the opposite function and comes into effect if the donor loses mental capacity.
The donor can revoke an LPA, providing they have the mental capacity to do so. The donor must complete and sign a revocation form and officially inform the donee of the revocation and the Office of the Public Guardian where the LPA was registered. The original LPA must accompany the revocation form, and there is a cancellation fee payable of S$30.
Section 15 of the Mental Capacity Act specifies scenarios where an LPA is automatically revoked. These include:
- The death of either the donor or the donee
- If either the donor or the donee becomes bankrupt. This only revokes the element of the LPA relating to the management of the donor’s property and financial affairs, not the part that pertains to health and welfare decisions
- If the donee loses mental capacity
- On the divorce or annulment of a marriage between the donor and the donee, unless the LPA makes express provision to the contrary
- If the donee is a corporation, on the liquidation, winding up or dissolution of the donee
Final thoughts on Powers of Attorney
Most probate lawyers recommend executing LPAs as part of their will writing service. However, there are lots of other occasions and scenarios, both temporary and permanent, when a power of attorney can make life flow more smoothly for both the donor and their friends and family.
Frequently asked questions
Can I use a power of attorney executed in Singapore in another country?
No, a POA executed in Singapore will not be valid in other countries. In the same way, a POA that originates from a foreign country won’t be enforceable in Singapore.
When can I execute a power of attorney?
Most people don’t think about powers of attorney until it becomes apparent, they need one. Another prompt is when writing a will. A probate lawyer will often suggest that people consider a POA as part of their preparation for a time when their health or mental capacity is failing.
Are there any restrictions on who can be appointed a donee under an LPA?
A donee must be at least 21 years old and may not be an undischarged bankrupt. They must also have the mental capacity to understand what they are being asked to do.
An LPA must be registered with the Office of the Public Guardian. If a donee is not doing their job correctly and making decisions in the best interests of the donor, this can be challenged by family members, or interested professionals such as doctors.
What is an Advanced Medical Directive or AMD?
An Advanced Medical Directive is not the same as an LPA. Often called a ‘living will’, an AMD is a legal document executed and signed by someone to indicate they do not want any extraordinary life-sustaining treatment to prolong life in a situation where they may not be able to communicate that message for themselves. It could be because they are incapable of exercising rational thought and judgement or have a terminal illness and are unconscious.
Whether an AMD has priority over an LPA may depend upon which came first. If you are executing an LPA and already have an AMD in place, then discuss this with your lawyer to ensure the legal documents accurately reflect your wishes.
