“What is Your Relationship to the Patient?”
It’s 4:30am right now. It’s been 17 hours since you were wheeled into the A&E and 11 hours since your surgery – yet, you are still unconscious. I’ve been worried sick. You deserve the best treatment and this is not the place to receive it. I want you transferred to another hospital but the doctors and nurses will not say more to me. To them, I am just a ‘friend’…
Luckily, what you have read so far is just a hypothetical scenario. But if this were to become your reality, the following will help you manage the situation for you and your loved ones.
What if you were not prepared before becoming mentally incapacitated? Someone will need to be able to legally manage your affairs without your consent. To do that, they must apply to Court to be made your deputy – which is a process that takes time and money. Now imagine a relative (who is related to you by blood but whom you do not trust) versus your partner (who is legally unrelated to you but whom you trust) both applying to Court to become your deputy. The Court may be inclined to appoint your relative as your deputy, because of your biological relationship to him or her, even if this would have been against your wishes.
Being an LGBTQ+ person in Singapore may present unique challenges in relationships with family. That is why, whether single or attached, there is a need to plan a little more than our cis-hetero peers. If you do not like leaving matters to chance, it is good to know more about the Lasting Power of Attorney (LPA).
What is a Lasting Power of Attorney (LPA)?
An LPA is a legal document that enables you to appoint one or more individuals to act and make decisions on your behalf should you lose your mental capacity. In an LPA, you are referred to as the donor and your appointed individuals are referred to as the donees.
What kinds of LPA are there?
There are two types of LPA – Form 1 and Form 2.
Form 1 is the standard version which gives your donee(s) broad powers in managing your affairs with few restrictions. The scope of affairs is fixed into two categories – Personal Welfare, and Property and Affairs, where the latter can be simplified as financial decisions. Form 1 is simpler and is more commonly used.
|Property and Affairs
|• Place of Living
|• Transactions Related to Property
|• Daily Living Decisions
|• Operation of Bank Accounts
|• Handling of Letters and Mail
|• Management of CPF Accounts
|• Healthcare and Medical Treatment Choices
|• Payment of Household Expenses
|• People in Contact with the Donor
|• Purchase of Necessary Equipment
Form 2 allows you to customise the powers granted as specifically as you wish and requires a lawyer to draft. For example, Jo and their mother’s relationship has been strained ever since they came out. However, they still want to safeguard their mother’s interest even if they become mentally incapacitated. With the support of a Form 2 LPA, Jo can specially instruct the appointed donee to give on their behalf a monthly allowance of $500 to their mother for as long as she lives.
What do I put in my LPA?
The paperwork of getting an LPA is straightforward, but the thought process behind it requires that you give careful consideration to who you pick as your donee(s) and which LPA form to use.
It goes without saying that your donee should be someone you trust. But to play devil’s advocate, be aware that your donee also has the choice to withdraw from their appointment even when you are already mentally incapacitated. Suppose you suffer a condition that renders you mentally incapacitated for life at a young age and your donee is your same-sex partner. Could there be reasons that may cause your partner to eventually disclaim their appointment? How LGBTQ+ relationships are not recognised by law may have compelled you and your partner to make an LPA, but it could also be the very reason why you or they might relinquish a donee appointment. Hard questions are uncomfortable but unavoidable in ensuring that your interests are best protected. This is where speaking to an expert or professional regarding your LPA may help. Your experience and needs are unique so don’t just think that having something is better than nothing – make your LPA truly reflect what you want.
If you are truly single and free, you may wish to consider appointing a professional donee if you have nobody to rely on to be your donee. These professional donees have to be certified by the Office of the Public Guardian, a division of the Ministry of Social and Family Development. They will charge fees which would likely have been negotiated with you while you had mental capacity.
Note that your donee(s) will need to acknowledge on the LPA form that they are aware that you have appointed them as your donee(s).
Your form will also need to be signed by a certificate issuer, who is a panel doctor, Singapore practising lawyer or psychiatrist. The role of the certificate issuer is to certify that that the donor understands the purpose of making an LPA, including their intention to appoint the persons named as donees, the powers that will be given to these donees, and that the donor is not forced or deceived into making an LPA. The Office of the Public Guardian has links to the directories of certificate issuers.
After your LPA form is fully complete, you will need to send it to the Office of the Public Guardian within 6 months of signing it. If payment is required, they will contact you. Otherwise, if no objections are received within 3 weeks of receipt, your LPA will be registered and you will receive a soft copy of the LPA.
How is the LPA used after I have gotten it done?
When your LPA is complete, ensure that your donee(s) have access to a copy. In the event you lose mental capacity, whether temporarily or permanently, your donee(s) will need to obtain a medical report (the Office of the Public Guardian has a template) to certify your lack of mental capacity to activate the LPA for and only as long as you are mentally incapacitated. Going back to our initial scenario, even if the lack of mental capacity ends up only being a few days, the LPA applies for those few days. Once the donor regains consciousness and is of sound mind, the LPA becomes deactivated again.
Although a medical report is generally needed before an LPA is activated, donee(s) who are a same-sex partner of the donor (and therefore does not have a legal relationship with the donor) may wish to attempt to “activate” the LPA the moment they have reason to believe that the donor lacks the mental capacity to manage their Personal Welfare and/or Property and Affairs. This may be needed in the hypothetical scenario above even before a formal medical report is obtained, because it provides some comfort to the hospital staff of legitimacy in access to the donor, in that the donee is not “just a friend”, but a legally important person who has been appointed to make certain decisions on behalf of the donor when mentally incapacitated.
When things change
If your circumstances change, you may update your LPA by revoking the current one and making a new one.
The process for revoking your LPA involves signing the revocation form and getting your donees to sign their acknowledgement before you can submit the form to the Office of the Public Guardian. You have the option of an immediate revocation or a revocation upon the registration of a new LPA.
The LPA is just one of many essential parts of estate planning. Whilst the LPA gives you a voice when you lose mental capacity while you are alive, it does not speak when you lose your life – your will is what represents your voice upon your death. Additionally, in the event that you become terminally ill and unconscious and you wish to inform the doctor treating you that you do not want any extraordinary life-sustaining treatment, you will need an Advance Medical Directive. Talk to an LGBTQ+ affirming adviser today to receive tailored advice and support on how to use legal tools to safeguard your rights and interests – especially for all the precious matters you hold dear to your heart and wish to defend.
Jie Bin and Pak
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