A simple Google search would show the basics of a Lasting Power of Attorney (LPA). The LPA is a legal document and a deed, which 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 if he/she loses mental capacity one day. A Donee can be appointed to act in the two broad areas of personal welfare and/or property & affairs matters. The LPA also gives the authority to the Donee to sign deeds on the Donor’s behalf.
At the time of writing, one likely belongs to 84% of Singapore residents who have heard of what a Lasting Power of Attorney (LPA) is (at least according to a YouGov Survey).[1] Yet, only one-fifth of Singapore residents have made their LPA.
If Singapore residents heard of an LPA and its uses, why then do the vast majority not have made their LPA? Consider this:
Why make an LPA?
We all assume that we will always have mental capacity. We plan our daily affairs – what we eat, where we live, who we will or want to meet easily. We go about managing our property and money on the assumption that we will be the one always in control – and the various institutions work on this social script as well. Our day-to-day affairs have legal effect because we have mental capacity.
Why make an LPA – HUGE savings in legal fees when one loses mental capacity and legal representation is needed
But what happens when one loses mental capacity? For one of my clients (I shall call him “X”), knowledge of LPA came too late. His wife had suddenly suffered an illness which rendered her bedridden and without mental capacity. Without a LPA, her husband had no power over her sole name assets and over their residential apartment that was held in joint names, unless he applied for deputyship under the Mental Capacity Act. The said application would have involved legal and court fees, precious money in the thousands that her husband wanted to save on. By the time X had gotten around to deciding on making the deputyship application (some years after first hearing about the said application), his wife’s condition deteriorated drastically and she passed away.
Mr. and Mrs. X could have saved thousands of dollars and avoided confusion, heartache, and an improved quality of life for Mrs. X should she have made a LPA before she lost mental capacity.
Why make an LPA – Ready when you and your loved ones need to act
Another reason why one should make an LPA when they are able to is that legal representation is planned and ready when needed.
An application for deputyship is not only costly, it is also time consuming when compared to an LPA application. An LPA Form 1 application is made in about 3 steps – (1) fill up the online application form on the Office of the Public Guardian portal[2], (2) have your donees accept his/her/their appointment, (3) visit a certificate issuer (a lawyer who has a valid practicising certificate, a doctor accredited by the Public Guardian to issue LPA certificates, or a psychiatrist)[3].
Having an LPA in place is somewhat like having a contingency plan in place and implemented, albeit it would be a broad plan under a LPA Form 1, or a prescriptive plan under an LPA form 2 (which has to be drafted by a lawyer).
While some would say that that’s how life is – things happen and people just have to handle it, I refuse that position. While we all have to deal with risks in life, there are risks that are known and foreseeable, and risks that are unknown and unforeseeable.
It is known that people get into accidents and diseases, and some of them result in people losing mental capacity. With that in mind, why wouldn’t people do up their LPA? Perhaps some people put it off thinking that it’s not urgent. Perhaps some people think it is taboo and talking to a loved one is seen as talking ill. Perhaps some people simply do not know enough of it to make a choice.
Step by Step guide on making an LPA
When speaking to my will writing clients, many do not know about the LPA and have questions as to how to do one, and who to appoint as donee. It is simple to make an LPA in Singapore. Here is my process in guiding my clients.
How to make an LPA
You can make your LPA online, and then visit a certificate issuer after your donees have accepted their appointments. You will need your SingPass Mobile, and your donees’ particulars. Simply (details here[4]https://www.msf.gov.sg/docs/default-source/opg/lpa_guide_english.pdf?sfvrsn=9ac18c6a_2) :
- Go to the Office of the Public Guardian Online Portal (https://opg-eservice.msf.gov.sg/OPGO/Home.aspx ) and click “Apply Now”, and fill up the forms to proceed. You fill the form and send it to your donees, wait for your donees to accept their appointment.
- Once all of your donees have accepted their appointments (you will receive notifications from OPG), visit a certificate issuer with your singpass mobile, and get certified.
- Your certificate issuer will submit the digitally signed LPA to OPG. OPG will process and register your LPA Form if there are no issues.
Simple? Yes and No.
As the Donor, you will have to select and have information on your Donees (we will cover how to choose your donees later in this article). Therefore, you need to know how many Donees you will appoint.
- Who can and should be your donee?
Your Donee(s) is the trusted person you appoint to make decisions and act on your behalf in the event that you lose mental capacity. He/she must be above the age of 21.
That’s all well and good on paper. You should then consider your circumstances. Are there people living with you? This is because your personal welfare donee will be entrusted with your daily care decisions, including what to wear and what to eat. For this reason, if you are married, you may wish to consider making your spouse your donee. If you have adult children living with you, you may also consider appointing them.
If you are single, you may wish to consider whether you have any trusted friends / cousins / adult nephews/nieces who you can trust. Now, I know that you may not want trouble them with your personal welfare. To this end, you may wish to consider making an LPA Form 2 instead of an LPA Form 1.
Why might you want to do an LPA Form 2 in this instance? First, by setting out clear instructions via an LPA Form 2, you reduce confusion and guide your donee(s) as to what is to be done. For example, telling your donee niece that you wish for her to place you in a nursing home verbally or via a letter may attract disparaging remarks made against her by your other family members. However, with a LPA Form 2, your arrangements (including any trusts) will have legal effect and your niece would be legally obligated to follow your instructions, shielding her from any criticisms from well-meaning but misinformed individuals.
Secondly, doing an LPA Form 2 may increase the likelihood of such individuals agreeing to be your Donee. Consider this: donees have legal obligations and duties to act in the best interests of the Donor. Such best interests can be hard to define. Most immediate family members would be inclined to act as your donor because of the familial relationship. However, for those without that strong bond, they may be worried as to whether they would be able to meet that threshold, thereby potentially breaching laws and potentially attracting criminal liabilities (for a case of criminal breach of trust created by the LPA, see here on a report on Yang Yin[5] https://www.straitstimes.com/singapore/courts-crime/yang-yin-saga-a-full-recap-of-the-case )
What if I do not have any one to rely on? Don’t have anyone who you can rely on to be your donee? You can appoint a professional donee (2023 list of professional donees can be found here[6]https://www.msf.gov.sg/docs/default-source/opg/list_of_registered_professional_deputies.pdf) You may wish to note that some professional donees deal only with property and affairs and not personal welfare – thus, choose wisely.
How many Donees can I choose?
For a LPA Form 1, you can choose up to 2 donees and 1 replacement donee.
This would mean the following options:
| Options | Donee | Replacement Donee |
| A | 1 | None |
| B | 1 | 1 |
| C | 2 | None |
| D | 2 | 1 |
You would need your donee/replacement donees:
(a) the Donee’s Name as per NRIC;
(b) NRIC number;
(c) Mobile Number; and
(d) email address.
What is a replacement donee?
A replacement donee may replace a specific or any of your donees if
- Your donee gives notice to office of the public guardian that he disclaims his appointment
- Your donee passes on
- Your donee becomes bankrupt (this only terminates his property and affairs powers)
- You and your donee divorce or have your marriage annulled
- Your Donee loses mental capacity
- The court revokes/removes your donee
Your replacement donee would not be able to exercise powers of being your donee until OPG is notified of any of the above conditions.
Simply put, your replacement donee is your backup donee who can only act if your donee cannot act as a result of a disability. The replacement donee cannot act on your behalf if the donee is simply at an inconvenience.
What are powers over “Personal Welfare”?
Personal welfare powers are powers over the donor’s upkeep of health and daily living. This includes what the donor eats, who the donor sees, reading the donor’s mail, and if the donor had appointed so, what medical treatments the donor receives.
What are powers over “property and affairs”?
These are powers over money and assets. This includes decisions over shares, bank accounts, CPF monies but does not extend to making wills.
Manner of exercise
Your donees only have powers to make decisions and act on the donor’s behalf in the event that the donor has lost mental capacity. While donors typically appoint donees to have powers over both personal welfare and property and affairs, some may – depending on circumstances – appoint one person to be a personal welfare donee, and another to be a property and affairs donee.
If you appoint multiple donees with the same powers, you will have to decide on their manner of acting, namely:
- Jointly – All donees must agree on the decisions to be made. If they cannot agree, they cannot act on your behalf for that decision;
- Jointly and severally – all donees may make decisions together or separately.
When should I consider using an LPA Form 2?
Do you have a specific plan to deal with certain matters, e.g. to be placed in a nursing home, to be cared for in another country?
Do you have assets that you are holding on trust?
Do you own a business where you manage its affairs actively?
Do you require a part of your assets to be ring-fenced for your children / elderly parents?
Do you have a dependent who has special needs?
If you answered yes to any of the above questions, you may wish to consider using a LPA Form 2 so that a lawyer can best advice and draft your LPA in a manner that meets your objectives and safeguards your interests while maintaining sufficient flexibility for your donees to react to certain foreseeable issues.
What happens when I need to change or revoke my LPA?
To change your LPA, you will first need to revoke your existing LPA and make a new one. Both can be done concurrently.
To revoke your LPA, fill this form, get it signed before a witness (above 21 years of age), and send it in via email or via post (both email and postal address is contained within the form)(https://www.msf.gov.sg/docs/default-source/default-document-library/revocation_form.pdf ). Pro-Tip: Make the new LPA and get it certified first – then send the revocation form in. This is so that there would be no gaps in coverage while OPG registers your new LPA.
Any further questions about LPA?
Yes, the above is general and lengthy (and should not be taken as legal advice). This is because an LPA is an important legal instrument. Should you require legal advice, do not hestitate to reach out to me at 85001003 or johnathan.lee@fongllc.com.
[1] https://business.yougov.com/content/49447-lasting-power-of-attorney-lpa-cpf-beneficiaries-end-of-life-planning-singapore
[2] https://opg-eservice.msf.gov.sg
[3] Certificate Issuer fees apply. As an advocate and solicitor, we can also render legal advice and partner you through making the LPA.
[4] https://www.msf.gov.sg/docs/default-source/opg/lpa_guide_english.pdf?sfvrsn=9ac18c6a_2
[5] https://www.straitstimes.com/singapore/courts-crime/yang-yin-saga-a-full-recap-of-the-case
[6] https://www.msf.gov.sg/docs/default-source/opg/list_of_registered_professional_deputies.pdf