Circumstances Leading to Omission of Sentence in Electronic Lasting Power of Attorney Document

Dr Tan Wu Meng asked the Minister for Social and Family Development (a) why was the omission of the sentence as required by law in the electronic Lasting Power of Attorney (LPA) document not discovered prior to October 2023; (b) what are the legal implications for such LPA documents without the required sentence; (c) whether there are process checks such as proofreading, vetting or end-user experience validation when such key documentary processes are digitalised; and (d) if so, whether such process checks are conducted by legally trained or laypersons.

The Lasting Power of Attorney (LPA) is a legal document which confers powers enabling a Donee to decide on the Donor's personal welfare, property and other affairs, if the Donor loses mental capacity. In the vast majority of cases, the property, such as a Housing & Development Board flat, a private condominium apartment or a landed property, is registered under Land Titles Act. To transfer ownership of such a property, there is no need for a deed. However, for property not registered under the Land Titles Act, transfer of ownership must be made by way of a deed. Hence, an LPA is executed as a deed, so that irrespective of the type of property, the Donee has the power to make the necessary transactions for the benefit of the Donor.

Prior to the roll out of the electronic LPA system in 2022, LPAs were made through hardcopy forms. In the hardcopy form, the signature box where the Donor physically signs contains the statement "signed (or marked) and delivered as a deed by Donor". Section 12A(1)(a) of the Mental Capacity Act is intended to replicate this for electronic LPAs and specifies that the electronic record must clearly state on its face that it is intended to be a deed.

Unfortunately, the electronic LPA, unlike the hardcopy form, did not contain this required statement. MSF apologises for this omission and for any inconvenience that this may have caused. We have revised the electronic form so that electronic LPAs made on or after 5 Jan 2024 include the required statement and have initiated the necessary legislative procedures to retroactively validate the affected LPAs.

MSF has an internal proofreading and vetting process. The forms were prepared by the staff of the Office of the Public Guardian and was vetted by the Public Guardian, as well as by a separate Legal Unit. Unfortunately, no system of process checks can be 100% accurate, as this case shows. In fact, the electronic LPA forms go through various parties, including certificate issuers who are people familiar with the hardcopy forms, such as lawyers or doctors. Despite this, it took nearly a year before a member of public noticed the difference and wrote in to enquire.

For the approximately 87,000 electronic LPAs made between 14 November 2022 and 4 January 2024, there is some uncertainty as to whether the LPAs were validly made. Hardcopy LPAs are not affected by this omission. MSF is not aware of any actual harm suffered by Donees or Donors. We are also not aware of any challenge to the exercise of those powers by third parties. The Mental Capacity (Amendment) Bill that was passed in Parliament on 2 Apr 2024 will remove any future potential complications.