How the Office of the Public Guardian can live up to its name
PUBLISHED ONOctober 18, 2014 1:00 AMByToh Yong Chuan
The Lasting Power of Attorney (LPA) scheme has come under the public spotlight recently, triggered by two high-profile public cases.
In one, the niece of rich widow Chung Khin Chun, 87, is seeking to revoke the LPA her aunt granted to former China tour guide Yang Yin, 40, in 2012.
In the second, Mr Gabriel Ng, the son of former SA Tours boss Ng Kong Yeam, 75, is challenging the LPA that his father granted to Madam Kay Swee Pin, 62, in 2011.
Madam Chung and Mr Ng are among 6,500 Singaporeans who have signed up under the LPA scheme since it started in 2010.
It is a voluntary scheme that allows proxy decision making, by letting a "donor" appoint a "donee" in advance to make key decisions on his personal welfare and financial matters should he lose the mental ability to do so.
Similar mental capacity laws and schemes are found overseas, like those in Britain and Australia. Singapore's laws are modelled after the England and Wales Mental Capacity Act, which sets the conditions and safeguards when decisions are made in proxy.
The two recent high-profile cases raise the question of whether there are enough safeguards to prevent abuses in the scheme here.
Safeguards against abuse
The issue of safeguards was debated extensively in Parliament when the Mental Capacity Act, which enabled the setting up of the LPA scheme, went before the House in September 2008.
Speaker of Parliament Halimah Yacob, then a backbench MP, pointed out that "the Bill gives proxy decision-makers power without too much accountability".
Responding, the then-Minister for Community Development, Youth and Sports Vivian Balakrishnan said steps would be taken during implementation to ensure that donees do not exercise their powers inappropriately.
"We will make sure this protection is catered for," he said.
Fast forward six years. The Office of the Public Guardian (OPG), which now comes under the Ministry of Social and Family Development, has put in place safeguards which it has stoutly defended as adequate.
At a press briefing last month, the office handed to reporters a list of safeguards which included having LPA forms certified by experts such as a doctor or lawyer. The office also sends experts to check on the welfare of donors and investigates complaints.
But it was firm in the areas that it will not be drawn into doing.
For one thing, it will not compel donors to inform their family members when they apply to be on the LPA scheme.
This stand is reasonable. Family relationships are complex and it is up to individuals whether they want to keep their family members informed of their decisions, just as they do when they make a will.
Also, the office maintains that it will neither supervise donors nor judge "the quality" of their decisions on who they grant LPAs.
Mr Tay Yong Seng, a partner at law firm Allen & Gledhill, put it well when he gave his personal views on the scheme at a public talk last week: "The extent of supervision for the OPG cannot extend to the same amount of supervision that the Commissioner of Charities does for the charities... We are dealing with private monies."
While the OPG may argue that safeguards are adequate, it should be open to making improvements to shore up public confidence in the scheme. There are at least three such areas.
Three areas of improvement
Notify Office of the Public Guardian when LPA is applied
The current safeguards are more heavily stacked towards making sure that LPAs are properly drawn up rather than how they are applied.
When The Straits Times asked the OPG at a press briefing last month how many of the donees of the 6,500 LPAs have already started using their powers, the question drew a blank.
The OPG does not know the answer because there is no requirement for donees to tell the OPG when they start using their LPAs.
This is a glaring weakness in the system. How can the OPG monitor what it does not know?
The OPG is justifiably worried about making the LPA too onerous on the donor and donee.
But the process of keeping the OPG informed when an LPA is used is not an onerous one for most donees - it can be through a simple phone call or submitting an online form. And it has advantages like allowing the OPG to have a better picture of what is happening on the ground.
It can even act as a road bump to make would-be abusers think twice. They know that they will not be able to fly below the radar as they do now.
And this improvement is also entirely within the remit of the OPG's role as an LPA registry, for it is now tracking both valid LPAs and those that are in active use.
This is the first area of improvement.
Upgrade guidelines on medical certification to compulsory requirements.
Second, while there is no requirement for donees to produce medical reports to show the donors have lost their mental capacities when they use the LPAs, banks still require donees to do so.
The Association of Banks in Singapore said: "If the medical certification is not clear, banks have the right to reject the donee's authority given under the LPA to transact on behalf of the donor."
This is a sound practice.
The Council for Estate Agencies also requires property firms and agents to comply with LPA guidelines issued by the OPG. It issued two letters to firms and agents this year to remind them to comply with LPA guidelines, said council deputy director for licensing Yeap Soon Teck.
The OPG should make medical certification a standard requirement in some instances rather than leaving it as a practice or guideline. For example, financial transactions above a certain amount can be made only when a valid LPA is accompanied by a medical report showing the donor's mental incapacity.
And firms like banks and estate firms who handle these LPA-related transactions should be made to keep the OPG or their regulators informed.
This will give some measure of assurance to donors that the persons whom they trust as donees will still be subjected to some regulatory oversight.
It cannot hurt.
Sound alarm if unrelated person is appointed donee
Third, alarm bells should ring within the OPG when a Singaporean with direct family members decides to appoint an unrelated person as his donee.
This is especially so if the LPA applications involve vulnerable groups. One such group is old widows - half of the current 193,000 women aged 65 and older are widows. This group is expected to grow bigger as women have longer life expectancy than men.
Curiously, the present LPA application form does not require donors and donees to spell out their relationships.
But the OPG told The Straits Times the vast majority of LPAs - 94 per cent - involves donees who are family members.
Still, that leaves 6 per cent of them, or about 400, who have donees who are unrelated, like Madam Chung, who appointed an unrelated former tour guide from China as her donee.
One wonders whether having unrelated donees when there are family members is a recipe for future conflicts. If so, it will serve the OPG well to flag these cases for further scrutiny.
In a reply to a parliamentary question earlier this month, Minister for Social and Family Development minister Chan Chun Sing took pains to emphasise that the safeguards are adequate and that "collective cooperation" is needed.
Said Mr Chan: "Everyone has a role to play and a responsibility to uphold within the LPA framework - the donor in his choice of donee; the certificate issuer in ascertaining the donor's understanding; the donee in acting in the best interest of the donor; and the OPG in its registry and investigation functions."
While the individual has to bear responsibility for his decisions, including poor ones, the OPG cannot shy away from public expectations of its guardianship and gatekeeping role.
Afterall, the head of OPG holds an inspiring title of Public Guardian, evoking an image of a knight in shining armour. Saying that the Public Guardian is merely a registry keeper and abuse investigator is uninspiring.
If it were so, it would be better served for the OPG to change its name.
The LPA scheme is in its infancy. While the two high-profile cases should not shake public confidence in the scheme, the scheme's administrators can strengthen public trust by remaining open to reviewing and improving it where warranted.
This article was first published on Oct 16, 2014.
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