An LPA is a legal instrument which allows an individual (the donor) to appoint one or more person(s) (the donee(s)) to make decisions on their behalf in the event of mental incapacity. In general, donees can be appointed to act in two broad areas: (a) personal welfare; and/or (b) property and affairs matters. Commonly, individuals make their LPA at the same time when they make their Wills.
For an individual who loses mental capacity but does not have an LPA, that person’s matters can only be decided by someone (usually a family member or a close friend) who applies to the Singapore court and is accepted as a court-appointed deputy.
The advantage of making an LPA is that the donor gets to choose someone whom the donor trusts to be their proxy decision maker. This is as opposed to deputyship where the deputy would not be someone who has been pre-selected from a legal perspective.
The other benefits of having an LPA include: (i) the opportunity to explain your values, decision-making principles and preferences to your donees when you are mentally sound, in order that they would make decisions which are aligned with your wishes if the need arises; (ii) reducing the burden on family members or friends who may need to apply for deputyship, which is time-consuming and more costly; and (iii) the ability for your appointed donee(s) to immediately make decisions on your behalf the moment you lose mental capacity.
If you have decided on making an LPA at this juncture, you may visit the website of the Office of the Public Guardian (OPG) of the Ministry of Social and Family Development to review the LPA forms and prepare the draft LPA.
If you are unsure of how to prepare the draft LPA, you may wish to approach legal professions such as our firm to assist you. Upon the finalisation of the draft LPA form, donees who have been nominated by donors will have to accept their appointments.
Thereafter, the LPA will have to be witnessed and certified by an LPA Certificate Issuer, who must be a qualified Singapore lawyer, doctor or a psychiatrist. Our professional fee to witness and certify your LPA as an LPA Certificate Issuer starts from S$100. The purpose of certification is for the LPA Certificate Issuer to ensure that the donor knows the purpose of the LPA and its legal implications.
If there are any suggestions and/or legal queries, please feel free to contact the author, Waltson Tan, at: waltson@tjylaw.com.sg
There are two types of LPA forms to choose from, and the preferred choice depends on each individual’s needs and purposes:
(a) LPA Form 1 is a standard form granting general powers to the donee(s) with basic restrictions. According to the OPG, approximately 98% off Singapore Citizens who have made an LPA used LPA Form 1. The application fee of $70 payable to the OPG to process the form is waived until 31 March 2026.
(b) LPA Form 2 is form which allows the donor to customise and specify the powers to grant to donee(s). It is mandatory to appoint a solicitor qualified to practise Singapore law in a Singapore law practice to draft LPA Form 2. LPA Form 2 would be suitable for individuals who have in mind to delegate specific scope of powers to different donees for different areas of their lives. There is an application fee of $185 payable to the OPG for the submission of this form as of the date of writing.
(a) Mental capacity: Individuals must be at least 21 years old and possess the mental capacity to make decisions in relation to the LPA at the time of its creation.
(b) Scope of power: The scope of power to be granted to donees should be clearly defined. It is broadly split into two categories: (i) personal welfare matters; and (ii) property and affair matters. For personal welfare matters, this can include, but are not limited to, decisions regarding healthcare, living arrangements, and daily activities. For property and financial matters, this can include, but are not limited to, managing bank accounts, investments, property transactions, and other financial decisions.
(c) Safeguards and restrictions: In making an LPA, there are options to specify your instructions. These instructions would help to ensure that your preferences are adhered to. If your instructions are so specific such that they cannot be fully reflected in LPA Form 1, you should engage a legal professional to draft your instructions by using LPA Form 2.
(d) Whether donees should make decisions jointly or severally: When appointing more than one donee, you must decide whether they will act jointly or severally. If donees have to act jointly, this means that they must make decisions together and not separately. There is a risk of dispute between donees if they are required to act jointly. In such event, there are options such as mediation and case conference to resolve such disputes. If donees may act severally, this means that they can make decisions either together or separately.
(e) Choosing professional or non-professional donees: Non-professional donees can be persons such as family members and close friends, selected usually because of their understanding of the donor’s personal wishes and preferences. Professional donees include persons such as lawyers and accountants, who are required to employ their skills and experience in managing the donor’s matters.
(f) When should a donee step in to make decisions: A donee’s powers will only be invoked when their donor loses mental capacity. When a donee has to deal with third party organisations (such as the donor’s banks), the donee can exercise their powers under the LPA after: (i) declaring that the donor lacks mental capacity as certified by a medical practitioner; and (ii) sending the electronic registered LPA that is password-protected to the organisation via OPG Online.
(g) Donees responsibilities: Donees are legally responsible for making decisions in the best interests of their donors. This includes maintaining accurate records of decisions made, avoiding conflicts of interest, and acting with care and diligence to the donor.
(h) Revocation of an LPA: In situations where the donor regains mental capacity, the donee is legally required to step aside to allow the donor to manage their own matters. A donor who has mental capacity may apply to revoke the LPA at any time by notifying the OPG and the donees. An LPA would also be revoked for reasons such as the death or loss of mental capacity of the donee or the bankrupcy of the donee. In the case of a professional donee which is a licensed trust company, the LPA would be revoked if they are no longer able to act because their licence has lapsed or been revoked, or is liquidated, wound up, dissolved or under judicial management.
(I) Contingency planning: Contingency plans, such as appointing replacement donees, reduce the risk to the donor in the event that the primary donees are unable to fulfill their duties.
It is essential for donors to carefully consider whom they should appoint as donees. Donees must be individuals which a donor has trust and confidence in managing their affairs. It is an option for donors to designate more than one donee, and determine whether they are to act jointly (together and not separately) or severally (either together or separately).
Once the LPA form is duly completed and the donees duly appointed, the LPA must be certified by a LPA Certificate Issuer. Upon certification, the LPA form will be submitted to OPG for registration. Following this, there is a compulsory three-week waiting period where objections to the LPA can be brought up by the appointed donees. If there are no valid objections received during this period, the LPA will be accepted and registered by the OPG typically within one week after the compulsory three-week waiting period.
(a) Periodically review the LPA: We would recommend donors to periodically review their LPA after registering it. This ensures it remains up-to-date in reflecting the donor’s wishes, needs and circumstances. Significant events such as the death of a spouse, divorce, or substantial changes to the finances of the donor may require updates to the LPA.
(b) Communication: Discuss the LPA with your donees and family members who are not your donees. Effective communication prevents misunderstandings and future disputes on the terms of LPA.
(c) Safekeeping and confidentiality: The LPA should be kept in a safe but accessible place, regardless whether it is in hard or soft copy. Informing donee(s) and trusted family members about its location is important. There may be risks of unauthorised alterations or misuse of the LPA when more than one copy is created, therefore it is recommended to maintain a single, original version of it.
Making an LPA is a proactive step we recommend that individuals take to safeguard their personal interests and to provide a peace of mind for their loved ones in the event of mental incapacity. It is our hope that readers of this article have a better understanding on the process of making an LPA.
If there are any legal queries on the foregoing, we would recommend that individuals clarify and doubt with legal professionals.
*****
The author, Waltson Tan, is a lawyer trained in London and Singapore. He is qualified as an advocate and solicitor in Singapore, and has more than seven years of post-qualification experience.
If you require further information and/or expert guidance on the above or any other area of law, you may wish to contact the author of the article, whose details are as follows:
Waltson Tan Director +65 8079 0028 waltson.tan@28falconlaw.com |
Office address: 101A Upper Cross Street #13-11, People’s Park Centre Singapore 058358Singapore |