Lasting Power of Attorney & Wills: Why Thinking About Tomorrow Matters Today.

Lasting Power of Attorney & Wills: Why Thinking About Tomorrow Matters Today.

It’s easy to not think about the future. We wake up in the morning, eat breakfast, go to work, and come home without much incident. It’s safe to assume that most people don’t have the words “I am going to die in 50 or so years” continuously running through the back of their minds. Now, while people shouldn’t exist in a general state of panic, making plans for the future is important.

 

We never know what can happen tomorrow – what could happen to our spouses and children if we’re gone. One thing we can do, is prepare. Developing a strategy is never a bad idea, and when it comes to securing our families’ future, a couple of good ideas include drafting a will or getting a Lasting Power of Attorney. Let’s talk about what these documents are, why they’re important, and how they can help you ensure a more stable tomorrow.

What is the Lasting Power of Attorney (LPA) in Singapore?

A Lasting Power of Attorney is a legal document which allows a person that is at least 21 years old to designate someone to manage his affairs in the event of a loss of mental capacity. The individual that makes the LPA (known as the donor) must appoint one or more people (known as the donee) to act and make decisions on his behalf.

Why should I create a Lasting Power of Attorney in Singapore?

Filing an Lasting Power of Attorney is a wise move. Should you become sick in the future, or reach a point where you’re mentally incapable of making decisions, having an LPA can ensure that your future affairs are managed in line with your current wishes.

 

If you are without an LPA once you become mentally incapable, a court order would have to be obtained instead. With a court order, the court appoints a deputy to handle your affairs. Court orders are troublesome in various ways: they’re time-consuming and expensive to get, and you don’t have a say in who the deputy is. Having an LPA in advance makes matters simpler.

How can I revoke a Lasting Power of Attorney in Singapore?

If you are mentally capable, all it takes is informing your donee(s), signing a revocation form, bringing it to the Office of the Public Guardian (with your original LPA), and paying a small fee.

 

There are also situations where an LPA can be automatically revoked:

 

Donor – the person who creates the Lasting Power of Attorney
Donee – the person whom the Donor choose to manage his affairs.

 

– When the donor or donee dies
– Upon the liquidation, winding-up, or dissolution of the donee (where the donee is a corporation)
– When the donor or donee becomes bankrupt
– When the donor and donee get a divorce or annulment (unless the LPA states otherwise)
– When the donee loses mental capacity

What about my donee? Are there restrictions on what he can and cannot do?

While you as the donor can choose how much control over your property your donee can have, Sections 13 and 14 of the Mental Capacity Act cite general areas donees cannot interfere in, including:

 

– Restraining the donor
– Medical treatment of the donor
– Nominations under the Insurance Act
– Execution of wills for the donor
– CPF funds
– Dealing with the donor’s property
– Making gifts out of the donor’s property

 

Signing your property away to another individual can seem like a frightening prospect, so note that the law protects against your donee taking any extreme action.

How is it determined in a Lasting Power of Attorney whether someone is mentally incapable or not?

According to the Mental Capacity Act, Section 4 (1), a person lacks capacity if he is “unable to decide for himself about the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” Only then, so states the law, can the donee of an LPA or court-designated deputy make decisions on the impaired individual’s behalf.

How will i know if someone is truly mentally incapable of looking after themselves?

In the case of Re BKR [2013] SGHC 201, the Singapore High Court overturned a District Court decision that appointed deputies to manage BKR’s affairs because she was mentally incapable and unable to make decisions about her property.

 

The District Court held much of their argument on a drawn out cross-examination where she performed poorly, recalling little and showing signs of mental incapacity. The Singapore High Court, however, held that capacity should be decided when a person is at their highest level of function within an optimal environment.

 

The Singapore High Court also pointed to assessments carried out by medical experts, all of whom decided that, in a comfortable setting, BKR was able to make her own decisions, and held enough mental capacity to take care of her affairs.

 

Deciding if a person does or does not have mental capacity can be very tricky. If anything, this case shows that it all depends on one’s decision-making ability and if a person, in a comfortable setting, can make his own choices.

What is the difference between a Lasting Power of Attorney and a Will?

A will only take effect after your death, while an LPA applies once you achieve mental incapacity. Whether or not you have a will, at least obtain an LPA. If you become unable to make decisions, not having an LPA can put your assets at risk, and your will won’t go into effect as long as you’re still alive. Ideally, it is a good idea to draft both documents.

Why should I draft a will?

Having a will ensures that you can decide what happens to your property after you die. Yes, death seems very far off, but without making the proper arrangements, your estate can wind up in the wrong hands.

How do I write a will?

The person drafting the will must be at least 21 years of age. The will must be committed to writing, and you must sign it. A will must have two witnesses who also sign it, and aren’t beneficiaries of the document or spouses of its writer.

 

It is highly recommended you obtain a lawyer’s help in drafting a will. Without legal advice, you cannot be sure if your will is well drafted and whether it deals with your estate and assets according to your wishes.

What should I do with my will in Singapore?

After drafting it, keep a copy of your will somewhere safe, and inform family members of its existence. It is also a good idea to deposit information of the will at the Wills Registry, to streamline the probate process.

Can I revoke my Will in Singapore?

A will can be revoked by marriage, drafting a new will, a written revocation, or destroying the old will.

How we can help you

At I.R.B. Law, we understand that making such preparations for the future is a very personal. We also understand that writing wills and Lasting Power of Attorney can be emotionally taxing in an already stressful period. Worry not; we will be able to guide you through this process and explain matters clearly.

 

Our first consultation is usually free as we wish to focus on you and not on your wallet. Don’t hesitate to reach us at hello@irblaw.com.sg or call us at 6589 8913 and schedule an appointment with one of our lawyers today.

 

The information contained in this article is provided for general information only and may not reflect current status about applicable law, cases, settlements or judgements. Nothing contained on this website or article is intended to constitute legal advice, nor should it be construed as I.R.B Law LLP agreeing to provide legal services to you. You acknowledge and agree that your use of this website shall not create a lawyer-client relationship with I.R.B Law LLP.