Lasting Power of Attorney (LPA)

LPA a legal document that allows a person who is 21 years of age or older to plan the management of his affairs in the event of a loss of mental capacity. In the LPA, the person making the LPA (known as the donor) appoints one or more persons (known as the donee) to act and make decisions on his behalf.

A donee should be someone you trust who is reliable and competent to act on your behalf. The use of a LPA is especially important if one is a sole breadwinner for the family, or is frequently beset with health problems.

Powers of the donee

The donee is given the authority to make decisions about the donor’s personal welfare and/or property and financial matters. This includes where a donor is to live and how he is to be cared for. The LPA can also allow the donee to access your bank accounts on your behalf.

person who lacks mental capacity?

Under the Mental Capacity Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

Why get a Lasting Power of Attorney?

Without a LPA, a court order would have to be obtained in order to administer the affairs of a person who lacks mental capacity. This court order is one where the court appoints a person to be the court-appointed deputy to manage the affairs of the person who lacks mental capacity. An LPA avoids the hassle of getting a court order, which can be both time-consuming and expensive. Additionally, where a deputy is appointed, you do not get a say in who is appointed to act for you, unlike a LPA.

Difference between a Lasting Power of Attorney and a Will

A Will becomes effective only after the death of the testator. A LPA however, becomes effective when the donor suffers from mental incapacity.

Who can be a donee

1. an individual who has attained the age of 21 years; or
2. if the power relates only to P’s property and affairs, either such an individual, or a person other than an individual who is within a class of persons prescribed as being eligible to be appointed as donees.
3. A person who is an undischarged bankrupt may not be appointed as donee of a lasting power of attorney in relation to P’s property and affairs.

Duties of the donee of the Lasting Power of Attorney

The donee, in the exercise of his powers conferred by the LPA, must act in the best interests of the donor. Best interests is defined in section 6 of the Mental Capacity Act. The Office of the Public Guardian can investigate cases where the donee does not act in the best interests of the donor.

Additionally, the LPA document itself may include restrictions or conditions limiting the power of the donee. Where the donor recovers his mental capacity, the donee no longer has the power to make decisions for the donor.

Lasting powers of attorney: restrictions

Sections 13 and 14 of the Mental Capacity Act contains multiple restrictions and conditions limiting the authority of a donee. They relate to:

• Restraining the donor;
• Medical treatment or healthcare of the donor;
• Nominations under the Insurance Act;
• Execution of wills for the donor;
• CPF funds;
• Dealing with the donor’s property; and
• Making gifts out of the donor’s property.

Revocation of the Lasting Power of Attorney

The LPA is revoked in certain conditions outlined in section 15 of the Mental Capacity Act. Most importantly, where the donor recovers his mental capacity, he can revoke the LPA.

can the court lift the Lasting Power of Attorney

Any person, such as a relative of the donor, may apply to the court to lift the LPA. The court has the power to revoke or lift the LPA, under the following conditions:

1. that fraud or undue pressure was used to induce Donor
   • to execute an instrument for the purpose of creating a lasting power of attorney; or
   • to create a lasting power of attorney; or
2. that the donee (or, if more than one, any of them) of a lasting power of attorney
   • has behaved, or is behaving, in a way that contravenes his authority or is not in P’s best interests; or
   • proposes to behave in a way that would contravene his authority or would not be in P’s best interests.

How can i make a Lasting Power of Attorney

Step 1: Donees

Choose your donee(s) wisely

• 21 years old and above
• Someone you trust to make decisions on your behalf, in your best interests

• Personal welfare
• Property and affairs
• Both

• Jointly — donees have to act together, cannot act separately
• Jointly & severally — donees can make decisions together or separately. Both types of decisions are valid.