Mr Speaker, I wish to speak about my concerns regarding Clause 16 of the Bill.
Before I begin, I would like to declare my interest as a lawyer in private practice who has witnessed and certified Lasting Powers of Attorney. I also conduct legal clinics on LPAs as part of my grassroots work.
Clause 16 changes how LPAs can be issued by the certificate issuer which could either be lawyers, psychiatrists, or selected doctors accredited by the Public Guardian.
Currently, it is a requirement for the person giving powers under the LPA, called the donor, to be in the physical presence of the certificate issuer. This certificate issuer must directly witness the donor using his Singpass credentials to digitally sign the document.
The proposed amendment removes this requirement. The donor does not have to be in the same place as the certificate issuer to sign the document so long as two-way visual communication is maintained, such as through an online meeting application.
I appreciate how remote signing is convenient if the donor and the certificate issuer cannot meet in person. This would especially help donors who have mobility difficulties, or perhaps live too far from the certificate issuer.
Sir, I believe the relevant Ministries are aware that the remote signing of LPAs can carry some risks, which explains why the Bill introduces some safeguards.
For a start, anyone who wishes to take advantage of the remote signing option will need to apply to the Office of the Public Guardian (OPG). The OPG will then consider each application on a case-by-case basis.
To qualify to make an application, the Bill stipulates certain conditions. The first two conditions are (i) that the donor must be under 75 years of age, and (ii) that the proposed donees must be either a professional donee working for remuneration, or be in specific family relationships.
Beyond that, the OPG also has to make an assessment that there is no significant risk in three aspects: (i) that there is no significant risk of fraud or undue pressure on the donor to appoint particular donees, (ii) no significant risk that the donor lacks mental capacity, and (iii) no significant risk that the proposed donees will not act in the donor’s best interest.
While I support the bill in its intentions to make it easier to assist donors who are immobile, I wish to raise some concerns when the LPAs involve donees who are family members.
It bears remembering that LPAs involve a substantial transfer of autonomy and are often done by older people. The donor is authorising a close relative to have lasting power over their personal property, and also to make personal or medical decisions, when the donor’s mental capacity is lost, until their death. There is thus always the risk that the donor's assets could be depleted by someone whom the donor is physically and emotionally dependent on.
For cases involving family members, it is straightforward to determine if the donor is under 75 years old and whether the proposed donees fall within certain categories of family relationships.
However, any assessment about the risks is necessarily more subjective in nature. How does the OPG determine that there is no significant risk or fraud or undue pressure, and no significant risk that the proposed donees will not act in the donor’s best interest?
Practically speaking, given the workload and resources of the OPG today, does the OPG have the capacity to carefully conduct case-by-case enquiries into the family circumstances?
Or would it be the case that the application process would be largely pro-forma — that so long as the documents are in order, the approval for remote signing would generally be granted?
In other words, how would the OPG be able to properly determine that there is no significant risk that an intended LPA will be to the donor’s detriment? It would be beneficial to get some clarity about what we can expect from the OPG in terms of specific measures and procedures.
Moreover, remote signing can also place the certificate issuer at a disadvantage in discharging his or her duty. The fact that the categories of certificate issuers involve people with medical or legal training suggests that a certificate issuer has to be more than a mere rubber stamp. Rather, there seems to be an implied responsibility for the certificate issuer to assess the competency and fitness of the donor to make an LPA..
In my own experience of certifying Lasting Power of Attorneys, I have found it helpful to not only pay attention to what the donor informs me, but to also observe the dynamics between the donor and donee through their demeanour and body language.
If I believe that the donor is not able to speak freely, or the donor appears anxious or flustered, I have the option of speaking with the donor alone to confirm that the donor is not under any undue external pressure.
In the case of remote signing, however, the certificate issuer does not have the assurance of being able to talk with the donor alone or even verifying that there is nobody hovering around the donor.
In all likelihood, the donee might even be sitting beside the donor to guide them through the remote signing, since the donor might not be tech-savvy to do it alone.
Of course, these risks can also be present with an in-person signing.., My point, however, is that remote signing increases these risks.
This risk is also compounded by the fact that unlike deputies appointed by the court, donees appointed by donors need not make regular reports to the OPG on the status of the donor’s assets. In an unfortunate scenario, any misuse of funds may go undetected for years.
Sir, I wonder if the OPG expects a high take-up rate for remote signing. Considering that the new law will still require both the donor and the certificate issuer to be in Singapore, it might still be much easier and faster to arrange an in-person signing, rather than making an application for remote signing and waiting for the OPG’s approval to proceed.
If the concern is to make the LPA procedures more convenient and accessible to donors, might I suggest the option of introducing more categories of certificate issuers? In the United Kingdom, registered social workers can witness and certify LPAs.
I am aware that many of our social workers have a heavy workload. But there may be some who may be interested to be certificate issuers. Perhaps the Government can open the option for them to receive training and accreditation from the OPG?
Another option is to hold more legal clinics and roadshows on LPAs in the neighborhood.
[in Malay] Sir, one last point. In the previous sitting, I filed a question about the demographic breakdown of LPA donors. The data says that 350,000 LPAs have been registered as of 15 August this year. However, out of the 350,000, Indian and Malay donors only accounted for 3 and 2 per cent respectively.
Tuan, satu lagi perkara. Dalam sidang yang lalu, saya sudah bentang soalan tentang butiran demografi penderma LPA. Data tunjuk bahawa 350,000 LPA sudah didaftarkan setakat 15 Ogos tahun ni. Tapi, daripada jumlah ini, penderma bangsa India dan Melayu cuma terdiri 3 dan 2 peratus masing-masing.
[in Malay] Hence, other than the suggestions above, could the relevant Ministries also consider more vernacular outreach, perhaps through community organisations, to help more Singaporeans to understand the benefit of LPAs?
Oleh itu, selain cadangan di atas, bolehkah Kementerian yang terbabit juga pertimbangkan pendekatan vernakular, mungkin melalui persatuan-persatuan masyarakat, untuk menolong lebih warga Singapura faham kebaikan LPA untuk diri mereka?
[in Malay] For the Malay-Muslim community specifically, is it worth considering the role that MUIS, perhaps in cooperation with our mosques, can play in spreading the word about the importance of making LPAs as well as facilitating LPA clinics? MUIS has done something similar in October 2020, when they held a Fatwa Seminar on LPAs and Advanced Care Planning (ACP), and more of this should be encouraged.
Dan untuk masyarakat Melayu-Islam khususnya, bolehkah MUIS mengambil peranan yang lebih aktif / dalam menyebarkan kepentingan membuat LPA dan juga menganjurkan sesi maklumat LPA? MUIS boleh juga bekerjasama dengan masjid-masjid kita dalam perkara ini. Contohnya, MUIS telah menganjurkan acara yang serupa di Oktober 2020 , dengan mengadakan Seminar Fatwa tentang LPA dan Advance Care Planning. Ini patut digalakkan.
Sir, in conclusion, I appreciate the general trend towards conducting business and legal transactions remotely. However, I believe that, in the case of LPAs, we should go to where the people are. Thank you, Mr Speaker.
