Personal
Lasting Power of Attorney
What is an LPA?
Have you considered what would happen if you were unable to make decisions about your affairs due to a loss of mental capacity?
An LPA, or Lasting Power of Attorney, is a vital legal document that empowers individuals aged 21 and above to proactively plan for such circumstances.
In this important legal instrument, known as an LPA, the person creating it—referred to as the donor—designates a trusted individual, known as the donee, to act on their behalf and make decisions.
Who should I appoint as my donee?
Choosing the right LPA for yourself
It’s essential to understand the distinction between LPA Form 1 and LPA Form 2, ensuring that your preferences align with the most suitable option.
While LPA Form 1 is the preferred and widely utilised option, LPA Form 2 caters to those with unique requirements, offering a tailored and comprehensive solution for a more intricate and personalised approach to power of attorney.
For those seeking a straightforward approach, LPA Form 1 stands as the go-to standard version. It grants general powers with basic restrictions to the chosen donee or donees.
On the other hand, LPA Form 2 caters to individuals with non-standard requirements. If you wish to bestow customised powers upon your donee or appoint more than two donees, this form is the ideal choice. Notably, LPA Form 2 necessitates professional drafting by a lawyer to ensure precision and adherence to your specific wishes.
LPA Form 2 also extends the flexibility of naming more than one replacement donee. This allows for seamless transitions in case an existing donee passes away, faces financial challenges, or loses mental capacity. Additionally, the donee has the option to notify the OPG if they choose to disclaim their appointment, providing an added layer of control and adaptability in the dynamic landscape of life’s uncertainties.
Unlock Peace of Mind with an LPA
For those who are sole breadwinners or have a history of health problems, utilising an LPA becomes especially paramount. Additionally, an LPA allows for the nomination of more than one donor, adding flexibility to the decision-making process.
Timing is of the essence, particularly in cases where someone has recently received a dementia diagnosis. Despite this diagnosis, it’s important to note that having dementia doesn’t automatically signify a loss of mental capacity. Early signs may still allow individuals to make informed decisions, making it possible to establish an LPA promptly.
Without an LPA in place, the alternative involves a potentially lengthy, costly, and stressful court application process for family members or loved ones to become deputies, appointed by the court to manage the affairs of an individual lacking mental capacity.
Choose the path of foresight, control, and ease. Set up your LPA today and ensure that your wishes are respected, sparing your loved ones unnecessary burdens during challenging times.
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Frequently Asked Questions about Lasting Power of Attorney
The LPA is a legal instrument that allows a person who is at least 21 years of age (‘donor’), to voluntarily appoint one or more persons (‘donee(s)’) to make decisions and act on his/her behalf should he/she one day lose mental capacity. A donee can be appointed to act in the two broad areas of personal welfare and property & affairs matters.
You must be at least 21 years old and must have the mental capacity to make the LPA. For the LPA to be valid, it must be registered with the Office of the Public Guardian (OPG).
We store all our clients’ Wills with our trusted custody partner that specialises in data security. This ensures that your Will is kept in a secure and confidential environment. Thereby, guaranteeing that your Will can be easily retrieved when needed, providing you with a peace of mind.
A person can only make an LPA when he/she has mental capacity. Parents of children with intellectual disabilities may apply to the Court to be appointed deputies if the children are likely to be still lacking mental capacity after reaching 21 years of age. The parents may also apply to the Court to appoint successor deputies as future decision-makers for their children with intellectual disability in the event the parents are no longer around or are unable to make those decisions.
Yes, you can at any time, revoke or terminate the LPA as long as you have the mental capacity.
There is no requirement for the donee(s) to be present when the certificate issuer witnesses and certifies the LPA. However, some certificate issuers may prefer that the donees be present. Hence, it would be best to check with the certificate issuer beforehand on their preference.
The witnesses for the donee(s)/replacement donee(s) can be any persons other than the donor or donee(s)/replacement donee(s) of the same LPA. The witnesses must be 21 years old and above.
As for digital/virtual signings, there would be no witnesses required as the process will be verified by SingPass.
If you did not make an LPA and subsequently lose your mental capacity, the Mental Capacity Act allows someone to apply for a Court order, for the Court to make the specific decisions on your behalf, or appoint someone to be your deputy who will make the decision(s) on your behalf. The Court order allows the Court to act in situations when a decision is required, but you are unable to decide on your own, and there is no one appointed to do so for you.
A Will operates only after the testator’s death. On the other hand, the LPA operates when the donor loses his mental capacity. The LPA also does not deal with the distribution of a person’s assets after his death. The distribution will be done according to the instructions in his/her Will, or the laws of intestacy if he/she does not have a Will.
There are two forms available, i.e., LPA Form 1 and LPA Form 2. LPA Form 1, which is the standard version of the form, grants general powers with basic restrictions to the donees, and the application process is straightforward. If you would like to customize the powers given to your donee, you can do this using LPA Form 2. You can engage a lawyer to draft out the terms. You would still need a certificate issuer, and the lawyer drafting out the terms can also certify the LPA Form.
The form will need to be filled up, and the certificate issuer is needed to certify the form. This is to certify that you understand the purpose of the LPA and the consequences of the LPA. It also ensures that there is no fraud or undue pressure used to induce the donor to create the LPA. The certificate issuer can either be a practicing lawyer, a psychiatrist, or an accredited medical practitioner. The certificate issuer will generally charge a fee for certification.
Under Para 5 of the Mental Capacity Regulation 2010, a licensed trust company can be appointed as a donee of a lasting power of attorney in respect of a donor’s property and affairs.
The LPA Form requires the lawyer to be the certificate issuer. The signing of the LPA Form must be done in Singapore and usually takes place at our office.
The procedures for the signing of the LPA Form is as follows:
1) Client to pay the non-refundable deposit (SGD1,000.00 for Form 2)
2) Fill up and sign the Letter of Engagement (LOE) and LPA instruction form.
3) Submit the signed forms together with a copy of the client(s) Singapore NRIC. If they are not Singaporean/Singapore PR, then please submit a copy of the client(s) passport.
4) Precepts will prepare the drafts based on the LPA instruction form. For the instruction form, what we need to establish now is who will be the donee. For LPA Form 2, Precepts will be the Property & Affairs Donee, so there is a need for the client to appoint a Personal Welfare Donee.
5) For LPA Form 2 – A lawyer will draft the powers in the LPA Form. We have established a standard working template through our previous experiences.
6) We will send the drafts within five working days via email.
7) If the client has any enquiries, they can raise it via email.
8) Once the draft has been confirmed, we can arrange for the signing with the lawyer and send it to OPG for the registration of the LPA.
9) Upon completion of the registration, we will forward the confirmation to the client for record purposes.
There are no “typical” powers or restrictions as each donor/client would have his own unique wishes. Based on our past experience, donors/clients have written the following powers/restrictions:
a) Restriction on sale of specific real estate
b) Preference to be placed in nursing home (or not to be placed in nursing home but to hire private nurse)
c) Specific treatment on certain assets. For example, car(s) to be sold immediately or certain investment property to be sold immediately
d) Provide gifts (for purpose of maintenance and medical expenses) to specific person
The listing provided by OPG refers to person who can be appointed to act as professional deputy (Personal Welfare and/or Property and Affairs matters). The keyword here is deputyship, and it is different from doneeship.
Deputy/deputyship refers to person(s) appointed by a court to act for a mentally incapacitated person for Personal Welfare and/or Property and Affairs matters. This is different from appointment of donee under a Lasting Power of Attorney (LPA) where the donor is still mentally capable in deciding who to act for him/her upon his/her mental incapacity.
Under the Professional Deputies and Donees Scheme (PDD Scheme) (Mental Capacity Registration of Professional Deputies Regulations 2018), a person (pre-qualified under the PDD scheme) may apply to be a professional deputy, this also qualifies the person to accept appointment as professional donee under a donor’s lasting power of attorney.
However, unlike an individual, under Para 5 of the Mental Capacity Regulations 2010, a licensed trust company can be appointed to act as a donee of a lasting power of attorney in respect of a donor’s property and affairs. Meaning there is no requirement for a licensed trust company to be separately qualified under the PDD scheme in order to be appointed to be a professional property and affairs donee.
The administration of the assets will be subjected to the powers granted to the property and affairs donee. In the absence of any specific instructions or restrictions, Precepts Trustee may administer the assets in the following manner:
a) The general principle is to preserve the assets for the donor.
b) In relation to any immovable property:
i) if it is to be rented out, the donee will assist in working with property agent in getting tenant and the subsequent follow-up work such as reminding
collecting the rental and renewing the tenancy agreement.
ii) Other miscellenous matters would be checking the condition of the property and engaging third party in repairing the property if required.
iii) For any cases that is linked to a Standby Trust, the donee will not be transferring the property to the Standby Trust as it will incur additional legal expenses and stamp duty. Instead, Precepts Trustee will administer it directly
as the property and affairs donee.
vi) Should there be any requirements to sell the property (such as lack of liquid assets to pay the outstanding loan of the property) then the donee will act as required.
c) In relation to movable assets:
i) If it is linked to a Standby Trust, cash in bank accounts may be consolidated and be placed in the Trust and be administered accordingly.
ii) In any other case, the donee may choose to close some of the bank accounts and consolidate it under one bank account for the ease of tracking and administration.
iii) For other assets (such as investment portfolio), the donee will take into consideration of the general principle of preserving the assets. Assets, such
as investments may or may not be sold depending on the market condition, liquidity of the estate and the need for any payment of liability and expenses of the donor.
The Fatwa Committee decided that the LPA is a form of planning which is permissible under Islamic law.
For further clarification/reference, please refer to the link below:
https://www.muis.gov.sg/officeofthemufti/Fatwa/English-Lasting-Power-of-Attorney
