What is the Difference Between an ACP, a Lasting Power of Attorney and an Advance Medical Directive?

What is the Difference Between an ACP, a Lasting Power of Attorney and an Advance Medical Directive?

Let us examine the differences between an ACP, Lasting Power of Attorney (LPA) and Advance Medical Directive (AMD), which are other commonly-known estate planning tools:

ACP and LPA

Unlike the ACP, which is non-binding, an LPA is a legal document that appoints donee(s) to act on your behalf should you lose capacity to make your own decisions, in areas spanning personal welfare (including healthcare decisions) and property/financial affairs.

An LPA can only be made if you are at least 21 years of age. On the other hand, there is no age limit to starting an ACP and involves the appointment of an NHS to make solely healthcare decisions for you.

Should you have already made an LPA, it is ideal and advisable for your donee and your NHS to be the same person, to avoid possible disagreements, when making healthcare decisions on your behalf.

ACP and AMD

Unlike the ACP, which is a process of communicating your medical wishes, beliefs and preferences, an AMD is a legal document that specifically informs the doctor that you do not want to use any life-sustaining treatment to artificially prolong your life, should death be imminent.

Both ACP and AMD are not mutually exclusive – you can do both.

If you do make an AMD, you should raise this during your ACP discussions and have your AMD documented, since it goes towards the overall planning of your future healthcare preference.

The table below summarises the key similarities and differences between the ACP, LPA and AMD:

ACPLPAAMD
What it isPlanning instrument which involves the appointment of NHS. Can be done informally.Planning instrument in the form of a legal document for the appointment of donee(s).A legal document that informs the doctor that you do not want to use any life-sustaining treatment to artificially prolong your life.
When it is triggered/ activatedYou have lost your mental capacity to make decisions.You have lost your mental capacity to make decisions.You are terminally ill, require life-sustaining treatment, and are unconscious or unable to exercise rational judgement.
Nature of processNon-legalLegalLegal
What the decision-making concernsHealth and personal care.Personal welfare, property/financial affairs.Healthcare (specifically on the use of life-sustaining treatment).

The LPA also does not deal with the distribution of a person’s assets after his death. This is settled according to the terms of his will, or the laws of intestacy if the deceased had not made a will.

Who Can Be a Donee in Singapore?

The donee can be a:

Professional donee

A professional donee can be an individual or an organisation that acts as a donee on a paid basis.

Examples of professional donees who are individuals include lawyers and social workers. However, professional donees who are individuals cannot be related to the donor by blood or marriage.

Professional donees that are organisations are allowed to manage only the donor’s property and affairs.

Non-professional donee

Non-professional donees are individuals who act as donees without remuneration.

These individuals must be at least 21 years old. Individuals who are undischarged bankrupts are not allowed to manage the donor’s property and affairs.

Powers of the Donee

As mentioned, 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.

Duties of the Donee of a 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 (OPG), which is the government body responsible for administering the Mental Capacity Act, can investigate cases where the donee does not act in donor’s best interests.

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 should let the donor manage his own affairs again. However, the LPA will remain valid.

Statutory Restrictions on a Donee’s Powers

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 nominations
  • Dealing with the donor’s property; and
  • Making gifts out of the donor’s property

How to Apply for a Lasting Power of Attorney in Singapore

There are 3 main steps for applying for a Lasting Power of Attorney in Singapore:

  1. Fill in the relevant form
  2. Have the form certified by a LPA certified doctor or lawyer
  3. Register your Lasting Power of Attorney application

1. Fill in the relevant form

The OPG has provided 2 forms on its website:

  • Form 1 is the standard version of the form, which grants general powers with basic restrictions to the donees.
  • Form 2 is the form to use if you would like to customise the powers given to your donee. You will have to engage a lawyer to draft the wording of the powers and then attach these terms as an annex to Form 2. 

You can download both forms on the OPG website.

2. Have the form certified

After preparing either Form 1 or Form 2, you will have to find a certificate issuer to certify the form for you.

This certification process is to certify that you understand the purpose of the LPA and consequences of the LPA. It also ensures that there is no fraud or undue pressure used to induce the donor to create the LPA.

The certificate issuer can either be a practising lawyer, a psychiatrist, or an accredited doctor. If you are using Form 2, the lawyer who drafted the LPA’s powers can likely also certify the LPA.

The certificate issuer will generally charge a fee for certification.

3. Register your Lasting Power of Attorney application

The final step is to mail your LPA application to the OPG within 6 months of you signing it. OPG’s mailing address is:

20 Lengkok Bahru #04-02
Family @ Enabling Village
Singapore 159053 ​

OPG will then contact you for payment and other details.

If no valid objections to the LPA are received within mandatory 3-week waiting period after the OPG has accepted your application, your LPA will be registered.

From 1 Aug 2019, all new LPA applicants will receive a softcopy LPA. If needed, you can also request a hard copy of the LPA, that is also a certified true copy, for $25.

The OPG has waived the $75 LPA application fee for registration using Form 1 for Singapore citizens (but not Permanent Residents or foreigners) until 31 March 2023. For Form 2, the application fee is $200.

How to Use a Lasting Power of Attorney in Singapore

1. Have a doctor certify the donor’s mental health condition

To activate an LPA, take the donor to a registered doctor to obtain a medical certificate that certifies the condition of the donor’s mental health. This medical certificate is known as the Medical Report Form for LPA Transactions and is obtainable from the OPG website.

You will need to bring the LPA with you when taking the donor to the doctor.

2. Approach the relevant institution for the transaction you want to carry out

For example, if you are looking to manage the donor’s bank account, you should approach the donor’s bank.

When approaching the institution, you will need to be prepared to present your LPA document (either a hard copy or a soft copy, or a certified true copy of it from the OPG).

Other documents may also be required, depending on the institution’s internal operating procedures for activating LPAs. For example, you may also need to bring:

  • The donor’s identification, e.g. NRIC
  • The completed Medical Report Form for LPA Transactions

You should therefore call ahead to inquire before making your way down.

For banks, you may also need to bring a medical report obtained within the last 6 months. If the donor’s condition is permanent, you may not need a recent medical report if the latest medical report states the donor’s condition of permanently lacking mental capacity.

3. The institution verifies the validity of the LPA

Upon receiving the required documents, the institution will check with the OPG on whether the LPA is valid.

If the LPA has been confirmed to be valid, the institution will allow you to carry out transactions in the donor’s behalf.


source:  https://singaporelegaladvice.com/
for latest info and forms go to https://www.msf.gov.sg/opg/Pages/Forms.aspx

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