A Lasting Power of Attorney is particularly important for patients with mild dementia. The SingHealth Duke-NUS Memory & Cognitive Disorder Centre shares more on how GPs can help to facilitate the process of making one.
A Lasting Power of Attorney is particularly important for patients with mild dementia, in order to respect their autonomy in the event of a loss of mental capacity. GPs, who have often formed bonds of trust with their patients, can play a crucial role in facilitating this process for their patients.
The Well-being of the Singapore Elderly (WiSE) 2015 study estimated that one in ten people aged 60 and above may have dementia.
As persons with dementia (PWD) in moderate and severe stages may not be able to make decisions independently, it is advisable to suggest to elderly patients with mild dementia, or even those who are well, to voluntarily appoint one or more persons to act on their behalf if they were to lose their mental capacity one day.
This advance decision can be made by a Lasting Power of Attorney (LPA). However, doctors need to be sensitive to the process when the patient has borderline mental capacity and complex family relationships.
THE MENTAL CAPACITY ACT
The Mental Capacity Act (MCA) was passed by the Parliament of Singapore in 2008. It then came into effect in 2010 after the establishment of the Office of the Public Guardian (OPG) and the completion of the Code of Practice.
The MCA is a comprehensive legal statute governing the care of persons who lack capacity.
Part II of the Act provides five statutory principles serving as general guidance in protection of persons who lack capacity (Table 1).
Part IV of the Act states the legal status and details of the Lasting Power of Attorney.
Part VII of the Act requires the appointment of the Public Guardian by the Minister.
The Five Statutory Principles of the MCA
- A person must be assumed to have capacity unless it is established that he lacks capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
- An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be
done, or made, in his best interests.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action
Table 1 The five statutory principles in Section 3 of the MCA
LASTING POWER OF ATTORNEY
What it is
The LPA is a legal document under which a donor confers on a donee (or donees) the authority to make decisions for the donor. The decisions concern the donor’s personal welfare or the donor’s property and affairs when the donor no longer has capacity to make such decisions.
What are the requirements?
The donor must have attained the age of 21 years and must have had capacity to execute the instrument (LPA) at the time of execution.
As such, the donor should have:
The mental capacity to make this appointment of donee(s) voluntarily
In their mind who is/are the suitable and trustworthy donee(s)
Read the LPA form carefully about the scope of decision
The donor can choose to delegate the power of decision making to the donee(s) in either personal welfare or property and affairs, or both.
These donors could be without dementia or with mild dementia.
THE ROLE OF DOCTORS
The role of a doctor is primarily to assess the patient’s mental capacity for the appointment of donee(s) and the scope of decisions (Table 2).
The doctor can also be a witness to whether:
- The donor is making the appointment voluntarily (i.e., without coercion)
- The donee(s) agrees to be the donee(s)
- There is a consensus among the donor and donee(s) in such arrangement
A Mini-Mental State Examination (MMSE) on the day of making the LPA would serve as a good support of the patient’s severity of dementia.
However, it cannot replace the functional test of the patient’s ability to ‘understand, retain, weigh and communicate’. The donor must be able to demonstrate all four requirements in the whole process of making an LPA.
A person is unable to make a decision for him/herself if he/she is unable to do all or any of the following:
a. understand the information relevant to the decision
b. retain that information
c. use or weigh that information as part of the process of making the decision
d. communicate his decision (whether by talking, using sign language or any other means)
Table 2 Criteria for the inability to make one’s own decisions, in Section 5 of the MCA
APPLICATION WITH THE OFFICE OF THE PUBLIC GUARDIAN
After the mental capacity assessment and the completion of the LPA form by the donor, donee(s) and witness and doctor’s certification, the form should be filed with the Office of the Public Guardian (OPG) by the patient or his/her family members.
OPG will grant the donor and donee(s) access to the soft copy of the LPA. The donee(s) can only share this soft copy with a third party after the donor loses his/her mental capacity. They can also apply for a certified true hard copy.
The donor can revoke the LPA at any time when he/she has mental capacity, by applying to OPG.
When the donor loses his/her mental capacity, the donee(s) will need a doctor’s medical report to certify and confirm it. This will then allow the donee(s) to act on behalf of the donor within the scope of decisions indicated in the signed LPA form. A sample of a doctor’s medical report is available on the OPG website.
PATIENT’S WISHES AND INSTRUCTIONS
As indicated earlier, the patient can choose the scope of decisions to be made by the donee(s) after the patient loses mental capacity.
Personal welfare is in relation to the patient’s health and social care (e.g., decisions on medical treatment and placement).
Property and affairs is in relation to the patient’s finances and property (e.g., handling bank and CPF accounts, and selling the patient’s property).
When more than one donee is appointed, the form will indicate whether they can handle these two areas either jointly or severally. This is a choice made by the donor, and should be communicated thoroughly among the donor and the donees.
NAVIGATING FAMILY DYNAMICS
It is not surprising that there may be disagreements in the choice of donee(s), whether they are to act jointly or severally for the donor in decision making, and the scope of decisions (personal welfare, and property and affairs).
Of course, the donor’s own decisions in these two areas are the ultimate guide. Nevertheless, in the doctor’s role, one should not underestimate the effect of family dynamics in making an LPA.
It is advisable to observe and ask the donor regarding any worry of coercion, undue influence or disharmony among family members.
It is more obvious when the donor’s mental capacity is borderline due to the progression of dementia or when
the idea of making an LPA is initiated by the family. Having a conversation with the donor alone would be very helpful.
A second opinion by specialists may be advised:
- When the diagnosis of the underlying condition leading to lack of mental capacity is unclear or unsure
- When the mental capacity of the donor is considered to be borderline, after the doctor’s assessment by the test of ‘understand, retain, weigh and communicate’
- When there is potential disagreement among the donor, donee(s) and other family members about the appointment of donee(s), scope of decisions and the ‘jointly/severally’ manner of decision making
An LPA can be very useful in respecting patients’ autonomy after losing mental capacity, by delegating the power of decision making to someone they love and trust.
Doctors are encouraged to be a Certificate Issuer of LPA to facilitate their patients in securing their autonomy for future decisions. However, doctors need to be sensitive to the process when the patient has borderline mental capacity and complex family relationships.
An 80-year-old man has been visiting your clinic for hypertension and diabetes. His daughter has noticed his poor memory state for a year. He was subsequently seen by a geriatrician who diagnosed that he has mild Alzheimer’s disease. His MMSE score is 24/30.
The daughter suggests to make an LPA for the patient. You have known this patient for more than 10 years. He has four children and, in the past, you have heard from the patient about the disharmonies among his children about money.
How should you proceed?
Supplement: Various advance decisions in Singapore (AMD, LPA, ACP)
|||Advance Medical Directive (AMD)||Lasting Power of Attorney (LPA)||Advance Care Planning (ACP)|
Any person aged 21 and above and with
Any person aged 21 and above and with
What it is
A legal document for the person to
indicate that he/she does not wish to
receive extraordinary life-sustaining
treatment in the event of terminal illness,
where death is inevitable and impending
A legal document for the person (the
donor) to appoint and confer authority
to one or more persons (the donee[s]) to
make decisions and act on his/her behalf
when the donor loses mental capacity
A process for the patient, family and healthcare staff to discuss care preferences for the future when the patient can no longer express his/her wishes
Legal document filed with the Ministry of
Given effect by the Advance Medical
Legal document filed with the OPG
Given effect by the Mental Capacity Act
Medical document kept in
a case note and healthcare
Who is involved
The person applies to the MOH. After
the family informs the medical team, the
medical team retrieves the document
from MOH. Doctors will have to declare
that the patient has a terminal illness.
The donor applies to the OPG. To be
activated after the donor loses mental
capacity and with a doctor’s medical
report. The donee(s) thereafter can make
decisions and act on behalf of the donor.
The healthcare staff, patient
and/or their family discuss
the care preferences. This is
documented in hard copy and in
the computer system.
When it is activated
When the patient with terminal illness
requires life-sustaining treatment (not
including artificial nutrition) and is
unable to exercise rational judgement.
When the donor loses mental capacity,
which is indicated by the doctor’s medical
When the patient loses mental
- Mental Capacity Act, Singapore. Available from: https://sso.agc.gov.sg/Act/MCA2008
- LPA, Office of Public Guardian. Available from: https://www.msf.gov.sg/opg/Pages/The-LPA-The-Lasting-Power-of-Attorney.aspx
- T Thirumoorthy. The Mental Capacity Act. SMA News (Sept 2016), pp. 22-23. Available from: https://www.sma.org.sg/UploadedImg/files/Publications%20-%20SMA%20News/4809/CMEP.pdf
Dr Chow has a deep interest in medical law and ethics. He spent a year in Scotland in 2018/2019 and obtained a Master of Law (Medical Law and Ethics) from the University of Edinburgh, and has also been appointed as the Chairman of the Clinical Ethics Committee in CGH. He is currently doing research about the function of clinical ethics committees in Singapore and writing academic legal journal articles. Dr Chow is also a member of the teaching team at the Centre of Medical Ethics and Professionalism, Singapore Medical Association.
GPs can call the SingHealth Duke-NUS Memory & Cognitive Disorder Centre for appointments at the following hotlines:
Singapore General Hospital: 6326 6060
Changi General Hospital: 6788 3003
Sengkang General Hospital: 6930 6000
National Neuroscience Institute: 6330 6363