What happens if you lose mental capacity without an Lasting Power of Attorney (LPA)?
Author: Patrick Tan and Adrian Sebastian Kohar
- Some of us know of the importance of an LPA and how this instrument helps to protect the interests of the donor in the event the donor loses mental capacity.
- But what happens if an individual loses his / her mental capacity before he / she manages to prepare an LPA?
- Below are the issues that you should be aware of / consider.
What is an LPA?
- Under the Mental Capacity Act (“MCA”), individuals who wish to make advance plans for themselves can do so through a legal document known as a Lasting Power of Attorney (LPA). An LPA allows the individual (donor) to appoint a proxy (donee) to act or make decisions on his behalf for matters relating to his personal welfare and/or property and finances.
What if there is no LPA and a person (“P”) loses mental capacity?
- If an individual loses mental capacity and there is no LPA, family members may apply to the Family Court to appoint a deputy. Similar to an LPA, a deputy may be authorised by the court to make decisions on P’s personal welfare and/or property and finances.
Court appointed deputyship
Under what circumstances will there be a court appointed deputy?
- A deputy will be appointed by the court when it is found that P has lost mental capacity and there is no one with any authority to make decisions on his behalf.
- Parents of children with intellectual disability may also apply to Court to appoint themselves as a deputy for their children and another person as a successor deputy to plan for the contingency where the parents themselves lose capacity or pass away.
Who can be a deputy?
- Under Section 24 of the MCA, a deputy may be an individual (e.g. family member) who has attained the age of 21 years or a professional deputy and is not related to P by blood or marriage. Such professional deputies may include elected professional groups lawyers, doctors, accountants, allied health professionals, nurses and social workers.
How to apply for deputyship?
- There are two different routes to apply for a deputyship court order: the simplified filing track and the regular filing track. Applications for deputyship court orders involving a use of monies of up to $60,000 or a matter listed in Annex A of this Family Justice Courts’ Quick Reference Guide qualify for the simplified filing track.
- For the simplified track, applications can be filed online through the Family Justice Courts’ Integrated Family Application Management System (iFAMS) using SingPass. For the regular filing track, several forms would need to be filed at the Crimsonlogic Service Bureaus.
- The application for appointment of a deputy should be filed within six months of obtaining the medical report on P. Broadly speaking, the following questions should be considered by the potential deputy / family of P:
- Who is to be the deputy and how many deputies are required?
- Decide on the care and financial plan for P:
- Where is P going to stay?
- Who will be taking care of P?
- What are the arrangements for paying for the expenses incurred for P?
- How long can P’s funds last?
- Is there a need to apply for other relevant powers on P’s behalf based on P’s current circumstances? (for example powers relating to transferring of funds from P’s bank account, making insurance claims for P, managing matters related to P’s house or flat, giving consent to medical treatment for P etc.).
How long will it take to apply for deputyship?
- Generally, under the regular filing track, it takes between two to three months for someone to be appointed deputy. The simplified track can take as quick as three weeks from the time an application is filed to when an order is issued.
LPA vs. Deputyship – which is better?
- An LPA is prophylactic in nature in that a person appoints a donee in advance to manage his affairs in case the person loses capacity in the future whereas a deputyship is done more spontaneously— deputy appointed by the court when it is found that a person has lost mental capacity and there is no LPA.
- Compared to a deputyship, an LPA is certainly more affordable. On average, the legal fees and the certificate issuing fee for an LPA add up to about $200 whereas a deputyship may cost much more depending on the duration of the application process.
- Another key distinction between an LPA and deputyship is that for an LPA, P as the donor has complete control over the choice of his donee while a deputy is chosen by the court. Although the court usually chooses a family member or a close friend of P to be the deputy, it is possible that a court appoints a deputy who was not intended by P or not desired by P’s family members.
Written by: Patrick Tan and Adrian Sebastian Kohar
Download article here.