Ms Sylvia Lim
To ask the Minister for Social and Family Development what safeguards are in place to ensure that persons who execute Lasting Powers of Attorney (LPAs) under the Mental Capacity Act act independently.
The Lasting Power of Attorney (or LPA for short) is a legal instrument that allows individuals (called donors) to appoint other persons (called donees) to make decisions for them, should they lose mental capacity in future. Before the Mental Capacity Act (the Act) was in force, there was no pre-planning instrument available. Families of those without mental capacity had no choice but to go through the Court process in order to make decisions to transact on their behalf. Such court applications can be onerous and costly.
In contrast to the previous regime, the mental capacity legislation of today is one that is facilitative and underpins the roles and responsibilities of donors and donees.
It is important that Singaporeans understand the intent and the spirit of the LPA. As such, the most fundamental safeguard would be education on the LPA and the Act. To this end, the Office of the Public Guardian (OPG) has conducted more than 600 talks on the subject. MSF will continue to educate Singaporeans and other stakeholders so that there is greater familiarity with the LPA framework.
Making an LPA
Making an LPA is a personal decision. Donors should consider who they wish to appoint as their donees carefully. The person should be someone whom the donor trusts and who knows the donor’s interests, preferences and beliefs.
After obtaining agreement of their donees for the appointment, the donor is required to see a certificate issuer as an independent check. The role of the certificate issuer is to certify that the donor understands the purpose of the LPA and is not under undue pressure. Three categories of persons can be certificate issuers – practising lawyers, psychiatrists and medical practitioners accredited by the Public Guardian. All three parties – the donor, donee and certificate issuer – are to also have read and understood the prescribed information on the LPA form.
Registration of the LPA
The LPA needs to be registered to take legal effect. When an application is submitted to the OPG, various checks are done to ensure compliance to the requirements. These include accuracy checks on the information in the form such as ensuring that if two donees are appointed, it is specified in the form whether they are to act jointly or jointly and severally; and that the signatures of the donor in different parts of the form are consistent.
The Act has safeguards in place to ensure that the best interests of the individual are protected if he should lose mental capacity. Should a donee not act in the best interests of the donor; the legislation provides for whistle-blowing so that the Public Guardian can investigate and take up an application to court to remove the donee.
Everyone has a role to play and a responsibility to uphold within the LPA framework – the donor in his choice of donee; the certificate issuer in ascertaining the donor’s understanding; the donee in acting in the best interest of the donor; and the OPG in its registry and investigation functions. We need the collective cooperation of everyone involved in order to fully realise the intent and potential of the legislation.