6 MIND-BOGGLING QUESTIONS ABOUT THE LASTING POWER OF ATTORNEY ANSWERED

BY DERRICK HO, DIGITAL NEWS EDITOR, Straits Times

SINGAPORE – The dramatic case of a wealthy widow who handed control of her assets, estimated to be worth $40 million, to a tour guide from China has thrown the Lasting Power of Attorney (LPA) scheme into the spotlight.

In the latest turn of events, Madam Chung Khin Chun, 87, has asked the Office of Public Guardian (OPG) to cancel the LPA which she gave Mr Yang Yin in 2012.

The move came after a psychiatrist who examined her last week found that she has the mental capacity to revoke the LPA, despite suffering from dementia.

But what exactly is the LPA and what powers does the guardian have? We answer some of these questions below:

1. What is the Lasting Power of Attorney or LPA?

A LPA is a legal document that allows a person to appoint another, labelled the donee, to make key decisions should he or she lose the mental ability to do so. Conditions that can cause mental incapacity include stroke, brain injury, dementia, mental health problems and intellectual disabilities. Anyone who is at least 21 years old can sign one.

Medical practiioners accredited by the Office of the Public Guardian (OPG), practising lawyers and registered psychiatrists in Singapore can be the certificate issuer for the LPA. The LPA must then be registered with the OPG. See the OPG website for details on how to make a LPA.

The LPA was made possible by the Mental Capacity Act, which came into effect in March 2010. The LPA registry is currently maintained by the OPG. Over 6,500 have signed a LPA in the past four years.

2. What is the difference between a LPA and a will?

A LPA in particular protects singles, childless couples and parents who have children with intellectual disabilities. For instance, these parents can appoint trusted people to take their place as decision-makers should they die before their children.

For those who already suffer from a lack of mental capacity but have not made an LPA, the Act allows for the appointment of proxy decision-makers called deputies.

A LPA does not provide for the distribution of the person’s assets once he has died. This is still dealt with in accordance with his will, or if there is no will, according to the laws of intestacy.

3. Can anyone be a donee?

In short, yes. The OPG recommends that the donee should be someone trustworthy, reliable and competent to make decisions for the donor. The donee must be an individual who is at least 21 years old when the LPA is signed. He also cannot be an undischarged bankrupt.

4. What kind of powers does the donee have?

The appointed caretaker, whose job begins only when the person has lost mental capacity, can decide on personal welfare matters such as where his charge should live, his social activities or issues regarding property and finances. But he has no say in his charge’s marriage, divorce or abortion, among other things.

If a caretaker ill-treats or neglects his charge and this results in death, he may be fined up to $20,000 and jailed up to seven years.

5. Must a donee produce certified medical proof of a patient’s permanent mental incapacity?

The Mental Capacity Act does not state that the donee must produce certified medical proof of the patient’s permanent mental incapacity, but it allows a person dealing with the donee in matters relating to the donor’s property to require the donee to produce such medical proof.

This safeguard is put in place because decisions relating to the donor’s property may affect not only the donor but also the persons transacting with the donee and other persons.

6. Can a LPA be revoked or terminated?

Yes but it must be done when the donor still has the mental capacity.

Of the 6,500 signed since the scheme was launched four years ago, not a single LPA has been revoked because of a court order. The 308 revocation cases so far have been due to other reasons, which could include termination by the applicant or the death of one of the parties.