A lasting power of attorney (LPA) is a legal document that is often executed at the same time as a will. However, it is different to a will because it allows for the management of someone’s affairs whilst they are still alive and in the event they lose mental capacity.
What is a lasting power of attorney, and how does it work?
Anyone aged 21 years or older can create an LPA so that a nominated person can manage their affairs if they become incapacitated. The person making the LPA is called ‘the donor’, and the person appointed to act on their behalf is called ‘the donee’.
An LPA pre-empts a situation where someone loses mental capacity, and there is no one to act on their behalf. In this instance, the court must usually appoint someone to manage their affairs.
With an LPA, you can avoid the delay, hassle, and cost of applying to the court, plus a donor can choose who they appoint. This is not the case if the court designates a deputy.
How to create an LPA in Singapore
Filling in the forms
Forms to create an LPA are available on the Office of the Public Guardian website (OPG). There are two types of forms. The first is the standard version which grants general powers to a donee. The second form allows the donor to customise specific powers. A specialist lawyer should draft this wording, which is then attached as an annexe to the form.
Certifying the forms
The certification process ensures that the donor understands the purpose and consequences of the LPA. It also checks that no undue influence or coercion is being applied.
The certification can be carried out by a practising lawyer, a psychiatrist, or a doctor with the appropriate accreditation. If a donor uses Form 2, the lawyer who drafts the specific wording can also certify the form. Whoever certifies the form will charge a fee for this service.
Register the LPA
The certified LPA must be sent to the OPG within six months of the donor’s signature. There is a mandatory three-week period of grace during which people can object. If no objections are forthcoming, then the LPA will be registered.
The standard fee to register Form 1 at the OPG is S$75, but the OPG has waived this for Singaporean citizens until 31 March 2026. The cost for Form 2 is S$200. Hard copy and certified true copies of the LPA are available for an additional S$25.
Choosing a donee
A donee should be someone the donor knows well and who is available, reliable, and competent. They don’t have to be a family member and could be a professional, such as a lawyer.
A non-professional donee is usually a friend or family member and acts on behalf of the donor without receiving any payment. A donee must be at least 21 years old and cannot be an undischarged bankrupt, so essentially a person of financial integrity and good standing.
A professional donee is an individual like a lawyer or an accountant but can also be a firm that acts on the donor’s behalf in return for remuneration. Social workers are often called on to be professional donees. A professional donee cannot be related to the donor by blood or marriage; this is to ensure they are completely impartial.
The role of a donee carries with it responsibilities and powers, which include making decisions about the donor’s property, financial affairs, and personal welfare. It can be a serious and demanding role.
A donee’s duties
A donee has a general and overarching duty to always act in the best interests of the donor. The OPG administers the Mental Capacity Act. It can investigate LPAs where family members or professionals report that the donee is not acting in the donor’s best interests.
Section 6 of the Mental Capacity Act details various things a donee should consider when making decisions to ensure they are in the donor’s best interests.
Donees can consider the donor’s previous intentions and past wishes on certain things; that’s why it helps if the donee knows the donor well. The donor may also have detailed other people whom the donee can consult on specific matters, and who may be able to help clarify what the donor would like to have done in certain situations.
An LPA may limit the decisions that the donee can make so that power can be limited, or it can be absolute.
Restrictions on a donee’s power
The LPA will set out the role of the donee and the decisions they are allowed to make. However, legislation is not silent on this point. Sections 13 and 14 of the Mental Capacity Act contain specific limitations on what a donee can do even if the LPA does not.
Restrictions include executing a will on behalf of the donor, making nominations under the Insurance Act, gifting the donor’s property, changing, or making CPF nominations, plus other limitations on the donor’s medical treatment and healthcare.
What does lack of mental capacity mean?
A person can become mentally incapacitated on a temporary or permanent basis. A head trauma from an accident could result in brain injury from which that person recovers, or mental capacity can be lost permanently due to an accident, illness, and problems such as dementia or a stroke.
The Mental Capacity Act defines this specifically when it states that a person lacks mental capacity if he is ‘unable to make a decision for himself in relation to the matter because of an impairment or, or a disturbance in the functioning of, the mind or brain’.
Activating an LPA
A registered doctor must issue a medical certificate confirming the donor’s mental health condition. This may be self-evident because the donor has been involved in an accident or has experienced a severe life-changing event like a stroke, or it could be harder to determine in the case of early onset dementia, for example.
The medical certificate is called the Medical Report Template for LPA Transactions. The certifying doctor must also see the LPA before issuing the certificate.
Final thoughts on LPAs
Most people don’t give any consideration to executing an LPA unless prompted by a lawyer when they write their will. However, an LPA is an extremely useful legal document covering unforeseen events and illnesses, and without it, life can be difficult for loved ones left to administer the affairs of a family member who cannot do so.
Frequently asked questions
Is an LPA executed in Singapore recognised in other countries?
An LPA executed in Singapore will not be valid in other counties. Similarly, an LPA executed abroad will not be recognised in Singapore. It’s usually necessary to complete a fresh LPA in line with the requirements of that particular country to be able to manage someone’s affairs overseas if they are incapacitated.
What is the difference between a will and an LPA?
A will only takes effect once the person making the will has died. An LPA also remains passive until triggered, but this legal document becomes live when the donor loses mental capacity – that may never happen, whereas death is a certainty!
An LPA doesn’t overlap with a will, so it won’t affect what happens once someone has died. Either the deceased’s assets are distributed in line with their will or, if they haven’t made a will, then following the laws of intestacy, which determine who gets what.
What happens when the donor recovers mental capacity if the interruption was only temporary?
When a donor recovers mental capacity, they will take over the management of their own affairs, and the donee’s role becomes redundant. However, the LPA remains valid and in force.
How does an Advance Medical Directive (AMD) correlate with an LPA?
An Advance Medical Directive, sometimes called a ‘living will’, is when the donor has executed a legal document informing medical professionals that they do not want certain interventions that may prolong life in the event of a terminal illness, unconsciousness, or the inability to exercise rational judgement. This is referred to as ‘extraordinary life-sustaining treatment’. AMDs are governed by the Advance Medical Directive Act (AMDA), which was passed in 1996.
A donee cannot override the donor’s wishes stated in an AMD, even with a full LPA; an AMD has priority.