Resolving Disputes Arising from Conflicts between Terms in Lasting Power of Attorney Drawn Up in Singapore and Overseas
Ministry of Social and Family DevelopmentSpeakers
Summary
This question concerns potential legal conflicts between Singaporean Lasting Powers of Attorney (LPA) and foreign instruments, with MP Saktiandi Supaat asking if Certificate Issuers (CIs) should be required to inquire about foreign LPAs. Senior Parliamentary Secretary Eric Chua replied that current legislation does not require such inquiries to maintain process simplicity, but the suggestion will be considered during the next legislative review. He clarified that CIs must be accredited professionals who meet donors in person to verify mental capacity and ensure no fraud or undue influence exists. The Senior Parliamentary Secretary noted that CIs are required to keep detailed records of these assessments and undergo regular engagement sessions with the Ministry for Social and Family Development. He further agreed to consider providing more detailed guidance for CIs to ensure they understand their rigorous responsibilities and to prevent the "rubber-stamping" of applications.
Transcript
14 Mr Saktiandi Supaat asked the Minister for Social and Family Development in view of the potential conflicts and legal disputes that may arise between a Singapore Lasting Power of Attorney (LPA) and an equivalent instrument executed in a foreign jurisdiction (a) whether the current legislation requires an LPA certificate issuer to enquire if a donor has previously executed a LPA or a similar instrument in a foreign jurisdiction; and (b) if not, whether such a requirement can be considered as part of the legislation.
The Senior Parliamentary Secretary to the Minister for Social and Family Development (Mr Eric Chua) (for the Minister for Social and Family Development): Mr Speaker, the Mental Capacity Act and Mental Capacity Regulations do not require Lasting Power of Attorney Certificate Issuers, or LPA CIs, to enquire if a donor has previously executed a foreign LPA or an equivalent instrument. We do not expect such scenarios to be common and are mindful to keep the LPA application process simple.
Nevertheless, we note the suggestion raised by the Member and will take it into consideration when the legislation is next reviewed.
Mr Speaker: Mr Saktiandi Supaat.
Mr Saktiandi Supaat (Bishan-Toa Payoh): Thank you, Mr Speaker. I would like to thank Senior Parliamentary Secretary for his answer. I have just one supplementary question. Some of the participants in the LPA value chain have given feedback on the concern that LPA Certificate Issuers are merely rubber-stamping. While I do not think so, there is a possibility that that may happen in the future, especially in relation to LPA applications with the Government's push towards more LPAs and enhancement of knowledge of LPAs.
So, can the Ministry consider looking into publishing more detailed guidance on the duties and responsibilities of Certificate Issuers in the making of LPAs? I think the LPA certificate issuers play a major role in terms of safeguards to ensure that LPAs are effective and not being used as a tools of court litigation going forward as well.
Mr Eric Chua: Mr Speaker, I thank the Member for his supplementary question. I fully agree with the Member that the role of the LPA Certificate Issuer is not merely to rubber-stamp the LPA application. In fact, LPA Certificate Issuers play a very key role in the entire process.
First of all, who can be a CI? It is not any Tom, Dick or Harry who can be a CI. You have to be a medical practitioner that is accredited by the Public Guardian, or you have to be a practising lawyer or you have to be a registered psychiatrist. So, first of all, the qualification to be a CI is already one step in ensuring that this is a professional service that is provided. And this process is an important safeguard in the LPA application process.
What does a CI need to do in the entire process of discharging his or her duty? First of all, the CI has to meet the donor in person. We have required this as a safeguard because the CI needs to play a few roles and one of which is to make sure that the donor is of sound mind, understands the intent and the scope of the LPA, and at the same time, verify that the donor is not induced by fraud or is under any undue pressure to make the LPA. In that meet-up process, the CI also verifies the donors' identity. I shall not go into details of how this is done. Thereafter, when all these steps have been made, the donor then digitally signs the LPA in the presence of the CI.
For this entire process, the CI must keep clear and detailed records of the steps that had been taken in order for him to ascertain the mental capacity of the donor and how he has arrived at this conclusion that the donor has mental capacity.
These are guides that have been given to the CIs. But we take the Member's suggestions that we can perhaps beef up the guide that is currently being provided. For the Member's assurance, we do currently have regular sessions where we meet up with the CIs through their respective professional organisations to reiterate the important role that the CIs play in this process.