Introduction

In our last month’s newsletter, we discussed the importance of having a Lasting Power of Attorney (“LPA”), especially, in the light of a rapidly aging population in Singapore.

The LPA, being a legal document, permits people (21 years or older with mental capacity) (“Donor”) to plan ahead to appoint one or more persons (“Donee”) to make decisions and act on their behalf for their personal welfare, property and affairs, if and when they lack mental capacity in the future.

In this article, we look at the roles and restrictions imposed on the Donee when he or she acts on behalf the Donor guided by the terms of the LPA, Mental Capacity Act and the Code of Practice.

Personal Welfare Donee

A personal welfare Donee helps to make decision on behalf of the Donor on matters such as where the Donor should live, his daily and social activities (for examples, what to wear and what to eat).

Restrictions On Personal Welfare Donee

 The Donee may only make decisions on behalf of the Donor if the Donor lacks mental capacity or reasonably believe that the Donor lacks the capacity to make those decisions.

The Donee may not make the following decisions:-

• not give or refuse consent to carry out or continuation of treatment by a person providing healthcare (including the conduct of a clinical trial) to the Donor unless expressly authorized in the LPA;
• not make decision to the carrying or continuation of life sustaining treatment on the Donor, whether or not it is extraordinary life sustaining treatment within the meaning of section 2 of the Advance Medical Directive Act;
• not to make decision to the carrying or continuation of any other treatment on the Donor which a person providing healthcare reasonably believe is necessary to prevent a serious deterioration in the Donor’s condition; or
• not to engage in the use of restraint to secure the carrying out of an act which the Donor resists, or restrict the Donor’s freedom to move, unless the act of restraint is necessary to prevent the Donor from suffering harm. If such restraining act is justifiable, the restraining act must be a proportionate response to the harm or seriousness of the harm to the Donor.

Exclude Decision

The Donee is not allowed to make the following decisions on behalf of the Donor:-

• consenting to marriage;
• consenting to touching of a sexual nature;
• consenting to divorce on the basis of 3 years’ separation;
• consenting to making an adoption order;
• adopting or renouncing a religion;
• receiving treatment for change of gender;
• consenting or revoking consent to treatment for sexual sterilization;
• consenting or revoking consent to abortion; and
• registering or withdrawing an objection regarding the removal of an organ from any person upon death;
• making or revoking an Advance Medical Directive; or
• making or revoking a gift of a body or any part of a body.

Property And Affairs Donee

A Property and Affairs Donee helps to make decision on behalf of the Donor on matters such as the Donor’s bank account transactions (for examples, opening and closing Donor’s bank accounts), properties (for examples, buying, selling, renting, mortgaging property, paying  rent, mortgage repayment by the Donor), tax matters, investing Donor’s monies and living expenses.

Exclude Decision

The Donee is not allowed to make the following decisions on behalf of the Donor:-

• execute a Will;
• make or revoke a nomination for his insurance policy;
• make or revoke a nomination of his CPF accounts; or
• make gifts from the Donor’s property unless the Donor in the LPA specifically authorizes the Donee to do so.

 Use Of LPA Form 2

 If the Donor does not intend to give such wide powers to the Donee and want to give more restricted or specific powers instead, then the Donor should use the LPA Form 2 instead (which may be drafted by the Donor’s lawyers).

 Guiding Principles When Donee Should Make A Decision On Behalf Of Donor

 When the Donee should make a decision on behalf of the Donor, he/she is guided by the principles below.

 Presumption Of Capacity

The Donee must always assumed that the Donor has the capacity to make a decision for himself/herself unless there is evidence to prove that he/she lacks capacity to make such decision.  As such, the Donor’s lack of capacity to make such decision cannot be based simply on the Donor’s appearance, age, condition or behavior.

Unwise Decision

The Donor is free to make his own decisions even if those decisions seem to be unwise to others.  Hence, even if a decision is unwise does not necessary mean that the Donor has lost his mental capacity.

 Giving All Practicable Help 

The Donee must take all necessary steps to help the Donor make his own decision without putting pressure or imposing his views on the Donor when helping him to make a decision.

 Best Interest

The Donee should always act or make a decision in the best interest of the Donor based on the circumstances.

 Less Restrictive

Any action or decision taken by the Donee on behalf of the Donor should always be one which is less restrictive on the Donor’s rights and freedom to act.  This would mean that at times, the Donee may not take any action or decision at all.

 Revocation OF LPA

The Donor can at any time revoke the LPA as long as he has the mental capacity to do so.  However, the Donor must inform the Donee in writing.  The Donor must also inform the Public Guardian in writing for the registration of the LPA to be cancelled.

 End Of Powerrs Donee

The Donee’s appointment is terminated as follows:-

• Donor or Donee dies;
• Donor of Donee becomes bankrupt;
• Donee, a trust company, whose licence is dissolved or annulled unless the LPA itself specifically provides that it will not;
• Donee formally refuse the appointment of being Donee;
• Donee lacks mental capacity; or
• LPA appoints more than one donee to act jointly and power of one of the donee is terminated.

Conclusion

Any Donor who intends to make a LPA can be assured that there are sufficient safeguards to the Donor and enough restrictions against the Donee under the LPA, the Act and the Code of Practice to prevent any act of abuse or exploitation by the Donee.