MCA & LPA Guide PDF

Takeaways The MCA facilitates decision-making for individuals who lack capacity through LPAs and the appointment of deputies. The test for determining lack of capacity involves an impairment or disturbance in the functioning of the mind that results in an inability to make decisions. Determining...

Takeaways The MCA facilitates decision-making for individuals who lack capacity through LPAs and the appointment of deputies. The test for determining lack of capacity involves an impairment or disturbance in the functioning of the mind that results in an inability to make decisions. Determining best interest requires considering all relevant circumstances and taking into account the individual\'s past and present wishes, beliefs, and values. Creating an LPA involves meeting certain requirements and formalities, and there are two forms available with different powers and customization options. The certificate issuer plays a role in assessing and certifying that the donor understands the purpose and scope of the LPA. Registering an LPA involves online submission through the OPGO system or hard-copy submission with specific requirements and fees. An LPA can be revoked by the donor, and the appointment of a doni can be terminated in certain circumstances. If an individual lacks capacity and does not have an LPA, an application can be made to court to appoint deputies to make decisions on their behalf. The court considers the principles of the MCA and the specific circumstances when appointing deputies. The Public Guardian has various functions, including maintaining the register of LPAs and deputyship orders, supervising court-appointed deputies, and receiving reports and investigating violations. Andrew Yip (00:01.1) Welcome. My name is Alvin, and in this session, I will be walking through the provisions of the Mental Capacity Act with Andrew Yip (00:12.002) We will be covering four broad topics relating to the MCA, as you can see in this slide. There\'s quite a lot of material to cover. I will not attempt to go through everything in detail. My objective is to provide a high level summary of this area and identify the salient points. Andrew Yip (00:38.19) Broadly, the MCA facilitates decision -making on behalf of persons who lack capacity, through lasting powers of attorney, which are executed by the donor when the donor has capacity, or the appointment of deputies when the individual no longer has capacity. The MCA also established the OPG and sets out its statutory functions. There are certain fundamental concepts that have been codified under the MCA and that apply across the board when dealing with persons who lack capacity. We will deal with these in three parts. General principles, lack of capacity and best interest. For ease of reference, I will refer to a person who lacks capacity as Andrew Yip (01:33.486) Sections 4 and 5 deal with a test as to when a person lacks capacity. Essentially, it is when that person is unable to make a decision for himself due to an impairment or disturbance in the functioning of the mind. What is an inability to make a decision? Look at Section 5.1. These are the 4 disjunctive factors to determine when a person is unable to make a decision for himself. Andrew Yip (02:04.888) The impairment may be temporary or permanent. In other words, a person may recover capacity, for instance, after a stroke. And a lack of capacity cannot be established merely by age, appearance or behaviour. In the decision of Re BKR, the court explained that a person\'s capacity is a highly context -dependent inquiry. It is both time and decision -specific. For instance, patients who suffer from Alzheimer\'s or dementia. They may have good days, they may have bad days. They may have more clarity in the morning, and less clarity as the day goes on. We have to be alive to these issues. The test under Section 4.1, Inability to make decisions, has two aspects, a functional component and a clinical component. The functional component is a functional inability to make a decision in relation to a specific matter at the material time. The clinical component involves an impairment of the mind. There also needs to be a causal connection between these two components. Where does that leave us, as soon to be practising lawyers who may be advising on MCA -related matters? What can we do practically, such as where there is a concern that a potential client may lack capacity? Well, send the person for a mental capacity assessment by a psychiatrist, and obtain a report confirming the person\'s mental capacity. But remember, that is not the be -all and end -all. There is also a functional component. the solicitor should personally satisfy himself as to the individual\'s capacity, especially if you are a certificate issuer for an LPA. Also, take detailed and contemporaneous attendance notes of the instructions from the client and the discussion on his attentions. Andrew Yip (04:12.75) Section 6 of the MCA sets out how to determine if a decision is in PE\'s best interest. All relevant circumstances should be considered. Refer to Section 63 to 69 for detailed considerations and steps. It should not be based on appearance or assumptions. Andrew Yip (04:35.566) I will not go through all of the considerations under subsections 3 -9. These are self -explanatory, but please take the time to go through them for yourself. Andrew Yip (04:56.558) I do, however, want to highlight subsection 7. This is not an uncommon scenario where a decision relates to the sale or disposition of an immovable property. In such cases, the person making the determination must be motivated by a desire to ensure, so far as is reasonably practicable, that P\'s property is preserved for application towards the cost of P\'s maintenance. during peace life. Andrew Yip (05:31.734) In addition, P\'s subjective views should also be considered as part of the decision -making process. This includes P\'s past and present wishes and feelings, P\'s beliefs and values that would likely influence his decision, and other factors that P would likely consider. Andrew Yip (05:54.286) There are many considerations in the determination of what is in P\'s best interest, which can ultimately be a subjective question. Section 6.11 provides that there is sufficient compliance so long as the steps and requirements at sub 1 to 9 are complied with, and the person reasonably believes that the decision is in the best interest of P. Finally, I would like to highlight that the OPG has developed a code of practice that elaborates on the MCA and its practical applications. It is a guide of best practices for everyone who interacts with a person lacking mental capacity. Chapter 6 of the code is relevant here in determining the question of P\'s best interest. Andrew Yip (06:45.452) Next, we will discuss the lasting power of attorney, or LPA in short. An LPA enables a person to make a personal and considered choice to appoint a trusted decision -maker to act in his best interests if he loses mental capacity one day. With an LPA in place, this obviates the need to make a court application for deputyship, together with the stress and cost involved, in the event that he loses capacity. You may also be aware that the Singapore government has been encouraging everyone, especially seniors, to execute an LPA, and has waived the OPG application fee until March 2026. Part 4 of the MCA contains the statutory regime relating to the creation, operation and revocation of the LPA. We will go through each of these provisions in turn. As mentioned, the LPA is a legal document that allows a donor to voluntarily appoint one or more donies to make decisions and act on his behalf if he loses mental capacity one day. A dony can be appointed to act in the two broad areas of personal welfare and or property and affairs. An LPA is executed by way of deed and takes effect at the point in time that the donor loses capacity. There are certain requirements and formalities for the creation of a valid LPA. You will see this in the slide. Importantly, P must have the capacity to execute the LPA. This is where MCA sections 4 and 5 come into play. Andrew Yip (08:31.95) There are two forms for the creation of an LPA. Form 1 is a standard form. It has a prescribed format and allows donors to grant general powers to their donies, with basic restrictions and without any customization of the powers. Andrew Yip (08:50.766) Form 2 is for donors who wish to grant customized powers to their donies. For instance, donors who have specific requirements in dealing with immovable properties or shareholding rights in companies or operating businesses. It also allows donors to appoint more than two donies or more than one replacement dony. Form 2 has to be drafted by a lawyer. By default, LPAs are to be submitted online through the OPGO system. Donor, Donis and CI will need to log in using ZincPass. However, there are exceptional situations where the OPG may accept hard -copy LPA forms to be submitted. These situations are listed at 2A to 2D of the slide, for instance, where the Donor or Donis do not have ZincPass. Just a note, if the submission is through a hardcopy LPA form, OPG requires the form to be accompanied by a cover letter signed by the donor, explaining why the donor is unable to do the online submission. The requirements as to who can be donies are set out at section 12.1 and 12.2. Different requirements apply where the power relates only to peace, property and affairs. The donor may appoint more than one doni. Under Form 1, there is a limitation of a maximum of 2 donis and 1 replacement doni. Under Form 2, there is no limitation. Andrew Yip (10:29.122) The donor can provide for the donies to act jointly, jointly and severally, or jointly in respect of some matters and severally in respect of others. If something happens to one of the donies subsequently, there are different implications that follow depending on whether the donies are to act jointly or jointly and severally. For instance, if one of the donies subsequently becomes This revokes the LPA, where the donies need to act jointly for personal welfare and property and affairs. However, if the donies act jointly and severally under the LPA, the bankruptcy of one dony only terminates the appointment of the bankrupt dony and not the other dony or donies. Andrew Yip (11:22.415) The Donis powers are as provided under the LPA and are subject to the conditions and restrictions specified under the LPA, restrictions under sections 13 and 14 of the MCA, which are specific to LPAs, and excluded decisions under section 26 of the MCA, which apply across the Subject to any express restrictions under the LPA instrument, these are examples of the powers that a personal welfare doni and property and affairs doni may have under the LPA. For instance, a personal welfare doni may make decisions as to where P will live, who P will live with, and day -to -day care decisions. A property and affairs doni may make decisions as to dealing with property, opening, closing and operating bank accounts, and making payments for general expenses. Andrew Yip (12:23.822) There are also restrictions on the donies that are statutorily provided for under the MCA. Under Section 13.1, generally, a dony must not make a decision on behalf of P, if the dony knows or has reasonable grounds to believe that P has the capacity to make the decision. The MCA also provides for specific restrictions in relation to personal welfare and property and affairs. For instance, the donnie cannot make decisions on life -sustaining treatment or treatment preventing a serious deterioration in condition. The donnie cannot do any act to restrain the donor unless the donnie has authority to do so and it is necessary to prevent harm to the donor and its proportionate response. The donnie cannot execute a will for the donor and the donnie cannot execute or revoke a CPF memorandum or insurance nomination. Section 26 provides for other excluded decisions, such as those relating to consenting to marriage, touching of a sexual nature, consenting to a decree of divorce being granted on the basis of three years separation, adopting or renouncing a religion, or an adoption order. The Doni is also subject to various duties. These go beyond the statutory principles under the MCA. The duties are set out in the slide and elaborated in Section 8.5 of the Code of Practice. A few points to highlight. The Doni must act in good faith, carry out duties with reasonable care and skill, must not take advantage of their position and benefit themselves, Andrew Yip (14:16.898) must benefit P. The Dhoni must keep accounts and keep the money and property of P separate from their own money and property. Andrew Yip (14:29.25) We next come to the certificate issuer. This is important for you to know, as once you get called to the bar and obtain your practising certificate, you will be qualified to be a certificate issuer. In addition to solicitors, CIs can also be psychiatrists or medical practitioners accredited by the OPG. The role of the CI is to assess and certify that the donor understands the purpose of the LPA. and the scope of authority conferred upon the Donets. Regulation 7.2 of the MCR sets out the situations where a person is disqualified from issuing an LPA certificate. This extends to family members of the donor and donies, and business partners or employees of the donor or donies. Note also the definition of family member under Regulation 2 of the Andrew Yip (15:29.816) The duties of the CI are important to know. The CI must certify that at the time when the donor executes the instrument, the donor understands the purpose of the instrument and the scope of the authority conferred under it, there is no fraud or undue pressure being used to induce the donor to create a lasting power of attorney, and there is nothing else which would otherwise prevent a lasting power of attorney from being created. by the instrument. Andrew Yip (16:03.808) A failure to abide by these duties may lead to disciplinary action. This was the case in Law Society of Singapore and Sam Chong Man. In that case, the court made clear that a solicitor who issues an LPA certificate must take reasonable care to advise and ensure that the donor understands the implications of its actions. The solicitor should only certify the LPA after meeting the donor explaining the legal effect of the LPA, and satisfying himself that the donor has mental capacity before witnessing the donor\'s signature on the LPA. When in doubt, the solister should always refer the donor to a psychiatrist, and the solister should not rely on third parties to discharge his duties. Andrew Yip (16:57.198) The following slides explain the procedure for registering an LPA. For online submission of Form 1 through the OPGO system, the donor needs to log in to the system via SyncPass, complete the prescribed fields, and notify his donies or replacement donies through the OPGO system. The donies or replacement donies may then accept their appointments on the system also via SyncPass. The online submission of Form 2 is similar, save that the donor solicitors will prepare the draft Form 2 for the donor\'s confirmation. Andrew Yip (17:38.388) Once the donies have accepted their appointment, it moves to the next stage for the issuance of the certificate. If the solicitor is the CI, the solicitor should meet with the donor to ensure that the donor has capacity and take reasonable care to advise and ensure that the donor understands the implications of his actions. The solicitor will also need to verify the identity of the donor and then to sign digitally through the OPGO system. Andrew Yip (18:10.286) Once the CI has signed off, it moves to the final stage for the registration of the LPA with the Office of the Public Guardian. At this point, the OPG will notify the donor that payment of registration fee is needed. You will see the fees in the slide. There are different fees for Form 1 and Form 2, as well as different fees for Singapore citizens, PRs and foreigners. There is a mandatory waiting period of 3 weeks prior to registration. If no valid objections are received during this time and the application is not withdrawn, the LPA will then be registered. The procedure for hard -copy LPAs, where the conditions are met, are set out in the slide. For Form 2, the solicitor will draft the necessary contents. The donor must sign on every page of the LPA, and the donor and donies\' may be witnessed by a person above the age of 21, but who is not the donor or the other donies. The donor and donies may sign on different days, but the donie must always sign before the donor. Andrew Yip (19:26.51) For the issuance of the certificate, the CI goes through similar steps to advise a donor and verify his identity. The CI will then sign and affix his professional stamp on the relevant signing page. Andrew Yip (19:42.062) Signed documents need to be delivered to the OPG within 6 months of Similar fees are required to be paid for registration. Andrew Yip (19:54.444) The same mandatory waiting period and registration process applies as Andrew Yip (20:02.178) We next discuss the revocation of the LPA and termination of the Doni\'s appointment. The donor can, of course, revoke the LPA while he still has mental capacity. He can do it through the OpGo system or a physical hardcopy form. There is a need to notify all the Donis and the OPG of the revocation. Andrew Yip (20:27.778) Where certain events occur, there\'s automatic termination of powers and or revocation under the MCA. For example, peace bankruptcy automatically revokes the property and affairs powers, but not the personal welfare powers. Further, termination of the Doni\'s appointment and revocation of the LPA is automatically triggered when, for instance, the Doni dies or loses mental capacity, or and individual donies a judge bankrupt. This affects the property and affairs powers only. However, this does not apply where there is a replacement donie who will then step in for the donie who has died or lost mental capacity or is bankrupt, or where there are two or more donies who act jointly and separately. In that case, the other donies can continue to act. Andrew Yip (21:27.532) A doni is able to transact on a donor\'s behalf only when the donor has been certified by a registered medical practitioner to have lost mental capacity. That is when the LPA is activated. To use the LPA to transact with third parties such as banks or insurance companies, the doni needs to log in to the Opgo system and send a copy of the LPA to those third parties and present a copy of the medical certifying the donor\'s loss of mental capacity to those third parties. The medical report for activation of LPA is in a prescribed format, but note section 1310 of the LPA. This says that a third party who is dealing with the doni relating to P\'s personal welfare or property may require the doni to produce a certificate from a medical practitioner stating that P\'s lack of capacity is likely to be permanent. And if the doni fails to produce this certificate, that person may refuse to accept the doni\'s authority to make decisions for pee in such matters. Andrew Yip (22:38.612) your reference, this is the template medical report for the activation of the LPA and it can be found on the OPG website. We now come to our third section on the appointment of deputies. Andrew Yip (23:06.862) Where P has lost mental capacity and does not have an LPA in place, an application can be made to court to appoint deputies to make decisions on P\'s behalf. The court may appoint a deputy for P even if P is below 21 years old. That is if the court considers that P will still lack mental capacity when he attains 21 years. In such a case, the court will prefer the parents or the guardian to be the deputy. But note that for uncontested applications for specific matters under PD 61A, P must be at least to 18 years old at the time the application is made, and every relevant person must consent to the application. In appointing deputies, the court will similarly have regard to the principles in sections 3 and 6 of the MCA, which we previously discussed. The court would also consider A decision by the court is to be preferred to the appointment of a deputy to make a decision. The powers conferred on a deputy should be limited in scope and duration as is reasonably practicable in the circumstances. Andrew Yip (24:18.754) We now go into the procedure for the deputyship application itself. If the applicant is related by blood or marriage repeal, there is no need for permission to commence proceedings. However, if there is no blood or marriage relation, then court permission is needed and a prayer for permission and grounds are to be included in the same application. The deputyship application is to be filed in the Family Justice Courts. There are notification provisions for P as well. The default position is that P needs to be notified of the deputyship application and provided with the requisite information in a manner that is appropriate to P\'s for instance, communication using simple language, visual aids or any other appropriate means. The certificate of notification also needs to be filed. However, the court may dispense a notification. The person required to notify may apply to court for dispensation where, for instance, P is in a permanent vegetative state or is minimally conscious, or where the notification is likely to cause significant or disproportionate stress or distress to P. The reasons for seeking dispensation shall be stated in supporting Form 217 sets out the matters which have to be stated in the originating summons. The form is fairly detailed. The prayers to be sought in the OS relate to the manner in which the deputies will act, and the powers that the deputies will have in respect of P\'s personal welfare and or property and affairs. Now these should be crafted specifically to P\'s circumstances and the facts of the case. Andrew Yip (26:12.856) For instance, some of the FAC -specific powers or orders that may be sought in the OS include that the applicant be appointed as the litigation representative of P\'s minor child, or that the applicant be empowered to withdraw DPS subsidies, or apply to CPF to withdraw such subsidies. A supporting affidavit has to be filed in support of the originating summons. There are specific forms for the affidavit, depending on the nature of the application. A joint affidavit should be filed by all the applicants, if there more than Andrew Yip (26:54.83) Certain search results have to be exhibited in the supporting affidavit. These are, whether P had an LPA, whether there was a previous Mental Capacity Act or Mental Disorders and Treatment Act order in respect of P, and whether P had registered a will with the will\'s registry. Details on relevant persons have to be included in the supporting affidavit. We will discuss who these relevant persons are in the next slides. The supporting affidavit should also state whether the relevant persons consented to the application and to dispensation of service, or where service would not be effected on them, for instance, if they are themselves mentally incapacitated. The application must also be accompanied by a doctor\'s affidavit exhibiting a medical report. The medical report should confirm whether P lacks capacity as to the specific matters in the application, and P\'s prognosis and whether he is likely to regain capacity. In order to assist the court, the medical report should distinguish the doctor\'s own observations and conclusions on examination of P. From conclusions, based on information given to the doctor. There are various other requirements for the medical report. Importantly, it must be made within 6 months of the date of application, and it should be based on a recent examination of P by the doctor and contain sufficient information to justify the doctor\'s opinions and conclusions. Andrew Yip (28:39.054) Who then is a relevant person? They refer to persons who have an involvement in P\'s life and or who are likely to have an interest in the application. These are usually P\'s immediate family members, simply by virtue of their relationship with P. They may include the spouse, adult children, parents or siblings. However, this may not necessarily be the case. For instance, the circumstances may indicate that the immediate family member does not have an involvement in peace life or is unlikely to have an interest in the application. Andrew Yip (29:22.422) On the other hand, the scope of a relevant person may be wider than just immediate family members. They may include friends or relatives who have a close relationship with P, or any person who has a legal duty to support P. It basically requires an assessment of a person\'s involvement in P\'s life and whether they are likely to have an interest in the application. It is important to read the relevant practice directions on this carefully and apply your mind as to who should be considered a relevant person for the purposes of the Deputieship application. All relevant persons must be served with the application papers. If any relevant person has consented to the application and dispensed of service, then the consent should be filed together with the application by the applicant. Andrew Yip (30:20.206) If a relevant person objects to the application, that person must then apply to court to be joined as a party to the proceedings. The relevant person objecting must file an affidavit stating his interest in the application and the grounds for his objection. The court has wide powers under the MCA in relation to PE\'s personal welfare and property and affairs. Under Section 22 of the The court may exercise its powers in two ways. The court may directly make decisions on peace behalf in relation to the matters in question by making a court order. Alternatively, the court may appoint a deputy to make decisions on peace behalf in relation to the matters in question. Now the specific powers in relation to personal welfare and property and affairs under sections 22.1 and 23.1 of the MCA. are listed in the slide. Please note that the powers are subject always to the restrictions on deputies, which we will elaborate in the next As mentioned, you can see in the slide that there are specific restrictions on the powers of deputies under Section 25 of the MCA. This means that with a court appointing a deputy to make decisions on peace behalf, the deputy may not be given these powers. Note also that there are certain restrictions under Section 25 which are not present under an LPA, where for instance, the donor can authorise the donies to make gifts. Andrew Yip (32:01.39) You will also recall these excluded decisions under Section 26 of the MCA. These apply across the board to LPAs, deputies appointed by the court, as well as the decisions that the court may make under the Andrew Yip (32:18.872) We move to the final section on the role of the public guardian. The Public Guardian carries out various functions towards enabling and protecting persons who lack capacity. These are statutorily provided for under the MCA. These functions include maintaining the register of LPAs and deputyship orders, supervising court -appointed deputies, receiving reports from donies and deputies, as well as investigating any alleged violation, of any provision in the MCA, including complaints about the way or manner in which donies and deputies are exercising their powers. We have come to the end of the lecture. Thank you for your attention. Takeaways Grants of representation are documents issued by the court to authorize individuals to administer the estate of a deceased person. There are different types of grants, including grants of probate, grants of letters of administration, and grants of letters of administration with will annexed. The procedure for applying for grants involves filing the necessary documents, such as an originating summons and supporting affidavit. Resealing of foreign grants allows the executor or administrator to administer the deceased\'s assets in Singapore. The schedule of assets may be amended if additional assets are discovered. Andrew Yip (00:00.642) Welcome to the lecture on Grants of Representation. My name is Poonchun Wai and I will take you through this lecture. So by now, you would have learned what a will is, you will also have learned about the Intestate Succession Act. Now, to put theory into practice, you will also learn where and how a will in the Intestate Succession Act, if applicable, will come into place where a person passes on. So after a person passes on, someone will have to make an application to court in order to be recognized or appointed to deal with the estate of the deceased. The category of documents that the court issues for this purpose is broadly referred to as grants of representation. There are different types of grants of representation, and in this lecture, we will go through the different types and the procedure for the application to court to be made. In the course of this lecture, we will be going through the different types of grants of representation and the procedure for filing for such grants of representation under the Family Justice Rules 2014 and the existing Family Justice Courts Practice Directions. These are the procedural rules enforced at the time of recording of this lecture. However, please be aware of the Family Justice Reform Bill and upcoming amendments to the Family Justice Act and Family Justice Rules. Notably, The new Family Justice Rules will be split into three separate volumes, with the procedures for probate being covered under the Family Justice, Probate and Other Matters Rules. Therefore, please look out for when these new rules come into force and conduct the necessary checks when in practice. There are two main types of grants which are most commonly encountered in practice. These are the Grants of Probate and Grants of Letters of Administration. Andrew Yip (01:52.6) The grant of probate authorizes executives appointed under a will to administer the estate and distribute the assets in accordance with the terms of the will or the Intestate Succession Act. The Intestate Succession Act may still be applicable because of cases of partial intestacy, meaning where the will does not fully dispose of the testator\'s estate. This may occur, for example, when the will fails to make provision for residuary assets. On grants of letters of administration, these are granted to administrators to authorize them to administer the estate and distribute assets in accordance with the Interstate Succession Act. The third type of grant is a grant of letters of administration with will annexed. This is applicable where there is a valid will but there is a failure of executives either under Section 13 or 14 of the Probate Administration Act. It is also possible for resealing of a grant of representation issued by a foreign court. This gives a foreign grant force and effect in Singapore and is applicable in respect of grants of representation issued by a Commonwealth Court or Hong Kong Coyote. There are also other types of grants which are applicable under sections 19 -25 of the Probate and Administration Act. Please look at these sections to find out when they each applicable. When you tasked to apply for a grant and you deciding which grant to apply for, you should first ask yourself whether there is a valid will. If there is a valid will and the executors are capable and willing to perform, then apply for a grant of probate. If there is a valid will, Andrew Yip (03:35.512) but the executors are not capable or unwilling to perform, then apply for grant of Letters of Administration with Will annexed. If there is no valid will, then apply for grant of Letters of Administration. Please note that we are not considering resealing of following grants in this flowchart. We will talk more about resealing later. First, we will talk about obtaining a grant of probate. When to apply for a grant of probate? You apply for a grant of probate where there is a valid will under the Wills Act and there\'s at least one executor appointed in the will capable and willing to execute the will. The process for application of grants is set out at Rule 208 of the Family Justice Rules. You can think of this as a process involving three broad steps. First, the filing of an initial set of documents together with your originating summons. Second, your supporting affidavit. Third, if all is in order, the court will issue the grants of probate. We will speak more about this in detail. Step 1, filing of the originating summons. You will need to decide which court to file your originating summons into. If the estate exceeds 5 million in value, file in the family division of the high court. If the estate is less than 5 million in value, file in the family justice courts. You will need to file your originating summons as an ex parte originating summons. Together with this, you will need to file a statement in Form 51, a certified true copy of the will, a digitally verifiable death certificate or certified true copy of the death certificate, administration oath if available, and other documents if required. We will go through these in detail. Before is a sample of an ex parte originating summons which is filed before the Family Justice Courts. The statement in Form 51 sets out the particulars and facts of the deceased and the applicants. Consider whether it is necessary to describe the deceased in the grant by some other name in addition to his true name. These must be stated and explained in the statement. Look also at Form 51 for the other particulars and a full set of information which has to be included. Andrew Yip (05:49.848) Take a look at a sample of a statement filed in an application for grant of probate. You would notice that apart from the particulars of the deceased and particulars of the applicant, there is also a section under C where the applicant is supposed to provide with further information. The applicant will also need to file a certified true copy of the will. The certification must be contained in a cover page certified by a solicitor. The deceased death certificate in either a form of a certified true copy or digitally verifiable copy must also be filed. For digitally verifiable certificates issued by the Registrar of Births and Deaths in Singapore, there will be a QR code that you can scan to verify the document. The applicant may also conduct litigation searches to check whether there have been any caveats or previous probate applications filed in respect of the estate. These searches can be conducted through the e -litigation system. Take note of the additional step where the deceased had died before 15 December 2003. Other relevant documents also have to be filed together with your originating summons, if applicable. These are your renunciations and translations. We will talk about renunciations in detail in the section on Applications or Grants of Letters of Administration. But in the context of the grant of probate, involves a situation where one of the executors named the will renounces his right to the grant Translations are required where documents are not in the English language. This can be done either through a court interpreter who certifies the translation, or through an affidavit of a person qualified to translate it, meaning a translator\'s affidavit. Other relevant documents to be filed together with your originating summons also includes an affidavit of due execution. This is required under rules 211 and 215 of the Family Justice Rules. Please see these rules for the details. Additionally, where evidence of the law of a country outside of Singapore is required, then an affidavit of foreign law also has to be filed together with the originating summits. The affidavit of foreign law may address matters, for example, whether the will was executed in accordance to the laws and laws of a foreign country, if the will was executed in that foreign country. See paragraph 65, sub 2. Andrew Yip (08:15.726) of the Family Justice Practice Directions for details. After filing the relevant documents, a checklist would be generated and a provisional reference number would be given. The original will has to be verified at the probate counter of the Family Justice Courts by 4.30pm of the next working day. If the court then accepts the originating summons, a probate number replacing the provisional reference number would be issued. A hearing date would also be fixed. The applicant may then move on to step 2 of the process. In step 2, the applicant has to file a supporting affidavit. The supporting affidavit has to contain a statement in Form 51, a schedule of assets if available by then, certified true copy of the will, death certificate or verified digital death certificate and any other relevant documents. The schedule of assets is a table setting out the assets of the deceased as well as the market value of these assets as the date of the deceased\'s death. If the schedule of assets is available and included in the supporting affidavit, then the supporting affidavit has to include the environment contained under paragraph 67 sub 3 of the Family Justice Court\'s practice directions. The schedule of assets should declare the market value of assets of the deceased as at the date of the deceased\'s death. In practice, the market value of assets may be ascertained around the date of the deceased\'s death. For example, from a bank account statement issued one or two days before or after the date of death of the deceased, unless of course there are reasons to believe that the value had changed significantly in the intervening one to two days period. In dealing with jointly held assets, a question which arises is whether a jointly held asset should be included in the schedule of assets. because of the right of survivorship. By right, such jointly held assets should be subject to the right of survivorship and should not be listed in the schedule of assets. Unless of course it is your client\'s position and your client is telling the court that the right of survivorship should not apply. Moving on, practice, bank accounts with zero balance may be listed in the schedule of assets as Andrew Yip (10:33.602) However, in doing so, the court will likely query as to why such accounts are being listed when there are no assets in them. In such cases, you will need to explain to the court with the reason, for example, that your client intends to deal with or close the bank Andrew Yip (11:01.76) In this slide, you\'ll see a sample of the schedule of assets. You\'ll see that there are three main issues to deal with. First, the deceased property in Singapore. Second, the outstanding debts in Singapore which is secured by mortgage. And this is only applicable for immovable properties. And third, the deceased property outside of Singapore. This is applicable for deceased persons domiciled in Singapore as at the date of death. In addition to the supporting affidavit, the applicant may also file the administration oath at the same time if the applicant had not filed this administration oath previously. There may be situations where the schedule of assets was not available at the time of filing of the supporting affidavit. This may be because the applicant was unable to ascertain the full extent of the deceased assets. However, The applicant still went ahead with the application for grant because the banks generally require a sealed copy of originating summons before they would disclose information about the deceased\'s assets. The schedule of assets can then be filed later and exhibited to a Schedule of Assets Supplementary Affidavit pursuant to paragraph 67 sub 4 of the Family Justice Court\'s practice directions. After all documents have been found and found to be in order, the court will then issue the grant of probate automatically. With the grant appropriate issued, the executors may now distribute the deceased assets in accordance to the will. Please note that if a printed grant appropriate is required, this must be applied for when filing the originating summons. A printed grant appropriate may be required where there is an expectation of resealing of the grant in a foreign court or if some banks require it as a matter of procedure. Andrew Yip (13:00.898) We will now move on to the second type of grant, which is a grant of letters of administration. Andrew Yip (13:09.934) So when do you apply for letters of administration? You may apply for letters of administration where there is no will, where the will is invalid, or where there is no executor who is able or willing to act. On this, see section 13.1 of the Probate and Administration Act for details. The documents to be filed with the originating summons in an application for grant of letters of administration are similar to the documents which have to be filed in an application for grant of probate. However, there are material differences in the details of the documents. For instance, the statement filed in an application for grant of letters of administration will have to provide details of the DC\'s nationality, religion and marital status. These details are not required in the statement filed in the application for grant of probate. In a similar vein, the relationship of applicants to the DCs have to be stated in the statement filed in the application for grant of letters of administration. The relationship of an executor to the DCs does not have to be stated in the statement filed in the application for grant of probate. Please refer to Form 51 for details. So who can apply for grant of Letters of Administration? The starting point is Section 18 of the Probate and Administration Act, which provides that in granting Letters of Administration, the court shall have regard to the rights of all persons interested in the estate of the deceased person or the proceeds of sale thereof. And in regard to land settled previously to the death of the deceased, Letters of Administration may be granted to trustees of the settlement. In the case of Toh Xiu King and Huang Hui Chuen, The court observed that the starting point is that the person who is most suitable among the beneficiaries to be the administrator is determined according to the priorities of entitlement to the deceased estate under the Laws of Intestate Succession. The court explained that this is because the beneficiary with the greatest entitlement to the deceased estate will naturally be the person most interested in the estate of the deceased. As to how this entitlement should be determined, Andrew Yip (15:18.638) Please look therefore at Section 7 of the Intestate Succession Act. The court in Toshio King also observed at Paragraph 24 that the defendant, being the deceased\'s spouse, had priority of entitlement to the estate by virtue of Section 7 of the Intestate Succession Act. Please look at Section 7 of the Intestate Succession Act to determine who can apply for grant on letters of administration. However, please note that where we are dealing with grant of letters of administration with will annex where there is a valid will, you should instead look at section 13 sub 2 of the Probate and Administration Act to determine who should be appointed as the administrator. In making an application for grant of letters of administration, you will need to consider the issue of clearing off of priority. If the applicant does not have priority in obtaining a grant of letters of administration, the applicant will need to obtain renunciations from all parties above the applicant in priority. Renunciations may be obtained by way of express or constructive renunciations. Express renunciations will have to be in writing and signed, and this will have to be in Form 53 pursuant to Rule 233, Sub 5 of the Family Justice Rules. If it\'s not possible to obtain express renunciations, there will be a need to consider relying on the provisions for constructive renunciation under Section 4 of the Probate and Administration Act through citation proceedings. The procedure for commencement of citation proceedings is set out under Rules 243 and 244 of the Family Justice Rules. In making an application for grant of letters of administration, you also need to consider the number of administrators required. Where there is a minority or life interest which arises under a will, then under section 6 of the Probate Administration Act, you will need either a trust corporation with or without an individual or at least two individuals to be administrators. Andrew Yip (17:29.216) In practice, in addition to the situations above, if there are beneficiaries who lack mental capacity, the courts have at times also required at least two administrators. Please be familiar with the differences in documents found in the application for grant of probate and the application for grant of letters of administration. A number of key differences are set out below. The matters to be addressed in the affidavit of foreign law, if required, differ. The particulars to be furnished in a statement in Form 51 also differs. The requirements for a supporting affidavit are the same in an application for grant of probate and in an application for grant of letters of administration. The requirements for a supplementary affidavit exhibiting a schedule of assets are also the same in an application for a grant of probate and in an application for grant of letters of administration. After the supporting affidavit and the supplementary affidavit, if applicable, filed, the court will then issue an order in terms if the documents filed are in order. In some situations, the court will then require security in the form of administration bond and two sureties to be furnished. Please note that where the public trustee has obtained grant of letters of administration, he shall not be required to give security. Additionally, where the administrator is entitled to the whole of the estate after payment of debts, sureties in the bond may ordinarily be dispensed with too. If the applicant is unable to locate sureties, the applicant will then need to file an application for dispensation of sureties. Under Section 29, Sub 3 of the Probate and Administration Act, the court may dispense the sureties to the bond. Andrew Yip (19:19.662) The procedure for application for dispensation of sureties is provided under paragraph 69 of the Family Justice Court\'s practice directions. This is made by way of a summon, supported by an affidavit, as well as the consent and writing of all adult beneficiaries. After the court has granted the application for dispensation of sureties, the applicant should proceed to file the administration bond and extract the order of court. The administration bond has to be signed jointly by administrators. Please see a sample of the administration bond on screen. Do note that the administrators are jointly and severally bound. The form of the administration bond can be found at Form 55. Where security is not required, the court will issue the grant of Letters of Administration automatically if all documents filed are in order. Where security is required, the court will issue the grant of Letters of Administration automatically after the order for dispensation of sureties has been extracted and the administration bond has been filed in court. Thereafter, the administrator would have to administer the estate and distribute the assets in accordance with the will, in the case of a letters of administration with will annexed, or the Interstate Succession Act. Please note that if a printed grant is required, this must be applied for at the time of filing of the originating summons. Next, we will move on to the resealing of a grant of representation. Where a court of the Commonwealth of Hong Kong had issued a grant of probate or grant of letters of administration and the deceased has assets in Singapore, the executor or administrator to whom the grant is issued may make an application to the family division of the High Court to reseal the foreign grants. Andrew Yip (21:14.414) Please note that the domicile of the deceased is important to ascertain in an application for resealing of grant of representation. Please see section 47 sub 4 of the Probate and Administration Acts. Upon resealing, the foreign grant will have force and effect in Singapore, and the administrator or executor may go about administering the deceased\'s assets in Singapore. As mentioned, applications for resealing of foreign grants have to be made to the family division of the High Court in Singapore. The process for resealing is similar to the process for application for a grant of probate or a grant of letters of administration. As before, the applicant will need to file a statement and administration oath if available by then, and in the case of resealing, the applicant will also need to file either a sealed copy of the foreign grant or a digitally verifiable sealed grant. You are required as a solicitor to verify the authenticity of the document and provide the relevant certification. The information that has to be contained in a statement also differs when you are filing an application for resealing of a foreign grant. Please take a look at Form 51 for a complete set of information required. The information on screen is not a comprehensive list. After the filing of the relevant documents, A checklist will be generated and a provisional reference number will be given. The original foreign grant or sealed certified true copy of the foreign grant, if any, has to be verified at the probate counter of the Family Justice Courts by 4.30pm of the next working day. This is similar to the process of filing for grant of probate. If the court accepts the originating summons, a probate number replacing the provisional reference number and a hearing date will be issued. The requirements for the filing of supporting affidavit are the same as in the application for a grant of probate. The requirements for the filing of a supplementary affidavit are also the same as in an application for a grant of probate. Andrew Yip (23:25.134) After the Supporting Affidavit and Supplementary Affidavit, if applicable, are filed, the court will then issue an order in terms if the documents are in order. If the court requires an Administration bond and two sureties, consider the application for dispensation of sureties. Please see Section 49 of the Probate and Administration Acts. The application for dispensation of sureties is the same as in applications for dispensation of sureties in applications for a grant of letters of administration. Where security is not required, the court will issue the memorandum of resealing and notice of resealing automatically if the documents filed are in order. Where security is required, the court will issue the memorandum of resealing and notice of resealing automatically after the order of dispensation of securities has been extracted and the administration bond has been filed. The executor or administrator, as applicable, may thereafter administer the estate and distribute the assets. Moving on, we will highlight a final matter relating to the amendment of schedule of assets. There may be times where the schedule of assets has to be amended. For example, the applicant may discover that the deceased had additional assets which were not listed in the schedule of assets filed in court. If so, the applicant may file and amend the schedule of assets without the permission of the court. This is to be filed together with a supplementary affidavit. As to what has to be included in this supplementary affidavit, please see paragraph 67 sub 5 of the Family Justice Court\'s practice directions. Thank you for your time. We have come to the end of the lecture. I hope that the information presented has been useful for your studies and will remain useful for practice. B24 PSP - F. THE LASTING POWER OF ATTORNEY AND MENTAL CAPACITY ISSUES - 2\. Capacity - The **[test]** for lack of capacity (**[s4(1) MCA]**) s4(1) MCA - A person lacks capacity in relation to a matter if at the material time he Section is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. Section 4(2) - It does not matter whether the impairment or disturbance is temporary or permanent Section 4(3) - Not established merely by (a) age or appearance, or (b) condition or aspect of behavior which leads to unjustified assumptions - [s5 MCA - Criteria for unable to make decision] - But in the case of BKR whilst the psychiatrist diagnosed the patient has schizophrenia, the psychiatrist also came to the conclusion that the patient was able to understand that information provided to the decision he was able to retain the information. - s**[3 MCA General Principles]** Section 3(2) Assume person has capacity Section 3(3) Take all practical steps to help person make a decision Section 3(4) Unwise decision does not equate to lack of capacity Section 3(5) &3(6) Decision made for or on behalf of a person lacking capacity must be in person's best interests Regard must be had to whether the purpose for which act / decision is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action **[s6 MCA \"best interest\" (s6 MCA)]** s6(2) = Consider all the relevant circumstances s6(3) = The \"future capacity\" when P recovers s6(4) = Encourage P in the participation in the decision making s6(7) = Preserving the property for the remainder of P\'s life - 3\. Acts and decisions covered by the MCA - **[s14 MCA Gifts by the Donor from the Donee\'s estate]** even if LPA authorises the Donee to make gifts, value of such gifts must not be unreasonable having regard to all circumstances and in particular, the size of the donor's estate, and must have regard to the principle in **[section 6(6) (preservation of donor's property for application towards the costs of his maintenance during his life).]** Donee\'s Defence (**[s7 MCA]**) - 4\. Lasting Power of Attorney ("**[LPA]**") - **[\[1b\] The Donees Powers and restrictions]** +-----------------------+-----------------------+-----------------------+ |   | Personal Welfare | Property & Affairs | | | | | |   | | | +=======================+=======================+=======================+ | Powers | Code of Practice, | Code of Practice, | | | Section 8.3 | Section 8.4 | | | | | | | Where P will live | Dealing with | | | | property (subject to | | | Who P will live | restrictions under | | | with | LPA) | | | | | | | Day-to-day care | Opening, closing & | | | decisions (e.g. what | operating bank | | | P will eat, drink, | accounts | | | wear) | | | | | Making payments for | | | What social | general expenses | | | activities to take | (e.g. household, | | | part in | medical expenses; | | | | rent; loans) | | | Handling P's | | | | correspondence | Receiving payments | | | | due to P (e.g. | | | Who P may have | dividends, income, | | | contact with | other financial | | | | entitlements) | | | | | | | | Handling tax | | | | matters | | | | | | | | Purchasing vehicles | | | | or other equipment | +-----------------------+-----------------------+-----------------------+ | Restrictions | Sections 13(2)-(8), | Sections 13(9)-(9A) & | | | MCA | 14, MCA | | | | | | | Cannot make | \* If prohibited by | | | decisions on life­ | Form 1, cannot sell | | | sustaining treatment | property without | | | / treatment | court order | | | preventing a serious | | | | deterioration in | Cannot execute will | | | condition | for donor | | | | | | | Cannot do any act | Cannot execute or | | | to restrain donor | revoke CPF | | | (unless donee has | memorandum, CPF / | | | authority to do so, | insurance nomination | | | it is necessary to | | | | prevent harm to donor | Cannot make cash | | | and it is a | gifts (unless | | | proportionate | expressly authorised | | | response) | in LPA) (note: | | | | Section 14(3), MCA) | +-----------------------+-----------------------+-----------------------+ - **[\[1c\] Certificate issuers]** Law firm Trainee cannot be an issuer - **[\"Family Member test\" Regulation 7(2)]** Family member is defined as a spouse or the person a child of a person, a father or mother of a person, a father-in-law or mother-in-law of a person, a brother or sister of a person, and then the last category. Any other individual who\'s related by blood or marriage and who is living in the same household as the person, right. So the brother-in-law is related to the donor I marriage. I then the question is, is she considered a family member? She would be a family member if he stays in the same household as the donor. \[2\] Procedure - Certificate Issuance & Registration - **[Duties of the Issuer:]** 1. The donor understands the purpose of the instrument, and the scope of the authority comfort under it. 2. There is no fault or undue pressure that\'s used to induce the donor to create the lasting power of attorney. 3. There is nothing else which would prevent a lasting power of attorney from being created act. - 5\. Deputies - 1\. Introduction - Principles, Best Interests & Other Considerations - **[b. Section 24(1) -- who can be deputy =\> 21 years old but \< 60]** - **[2. Procedure]** - **[Step 1:]** Does Bruce(the P) have mental capacity? Doctor\'s Affidavit & Medical Report must be recent not more than **[6 months]** before the date of the application - **[Step 2:]** Is Court permission to appoint needed? a. Section 38(2) MCA, rule 176(2), (3) FJR Section 38(2) says that except for the provisions in section 38 (1) everybody else would need a permission of court before they can apply to be appointed as deputy. Then Rule 176(2) and (3) of the FJR then creates another exception. If the applicant is related to plea by blood of marriage, then permission of the court is not required for the application. b. Para 47(2) FJC PD -- documents are permission of court is not required The FCPD provides that if you\'re relying on the exception that you\'re related to P by either blood or marriage, then documents evidencing this relationship must be provided together with the application to be appointed as deputy c. Para 48(2) FJC PD -- prayer for permission may be included in the main application. d. Considerations -- section 38(3) MCA (3) In deciding whether to grant permission the court is to, in particular, have regard to --- (a) the applicant's connection with the person to whom the application relates; (b) the reasons for the application; (c) the benefit to the person to whom the application relates of the proposed order or directions; and (d) whether the benefit can be achieved in any other way. - 3\. Relevant Persons - **[Who are \'relevant persons?\']** - **[Step 1:]** 1. Persons who have an involvement in P's life and/or who are likely to have an interest in the application. 2. Often, P's immediate family members, by virtue of their relationship to P, are likely to have an interest in being notified that an application has been made to the Court concerning P. 3. Para 50(9), FJCPD: An organisation providing residential accommodation to P is considered a relevant person 64 **[Step 2:]** whether you can obtain their consent or you must serve papers, the applicant application, papers on them. Paragraph 50: paragraph 50 sets out what the relevant persons are and relevant persons are stated to be persons who have an involvement in peace, life and. Or who are likely to have an interest in the application. Relevant person: Relevant persons, for the purposes of the rules, will include the spouse, pea, spouse, peace, children, peace guardians, or parents and MP\'s, brothers or Sister D This the the relevant person can include all these persons that are stated in paragraph 52 50(3) - presumption is that the immediate family member are likely to have an interest concerning P. 50(6) - other relevant persons who are likely to have an interest in the application concerning key and who should be served would include any other relatives or friends who have a close relationship with P. OR Any person who has a legal duty to support P. Any person who will benefit from please estate and any person who is responsible for peace care. so once you decide who the relevant persons are, remember either you need to get their consent, serve the papers of them, or obtain dispensation of service on this relevant concept. - **[Documents to be filed in Court]** - a\. Para 54 of FJC PD -- OS (Form 217 Appendix A FJC PD), supporting affidavit (form 218), Doctor's affidavit exhibiting medical report (Form 224), consent of relevant persons (Form 221) b. Drafting of prayers -- section 20(4) MCA; para 54(5) of FJC PD - prayers should be limited in scope and duration to what is appropriate or what is required. Para 54(5) the powers must be appropriate for the decision to be made. e.g. care facility or domestic care helper. **[Prayers need to reflect what permission is needed from the Court.]** c. Single affidavit for all applicants -- para 54(8A) FJC PD d. Searches to be conducted -- para 54(8B) of FJC PD -- OPG re LPA, re Metal and Disorder Treatment Act, Wills registry Service of documents - a\. On relevant persons (para 50(4) of FJC PD -- OS, supporting affidavits and notice to relevant persons (Form 222)) b. On P -- dispensation (rule 181(6) to (8) FJR/ notification rule 181(3) FJR) - P no longer has mental capacity to understand **[s20(2) read with s22 and s23 - Powers of the Court]** - **[4. Restrictions on Deputies]** - s25 - Restrictions on powers of deputies Deupty cannot make gifts on P\'s behalf