Judge revokes 86-year-old woman’s lasting power of attorney granted to older brother

SINGAPORE - An 86-year-old woman with dementia drew up a lasting power of attorney (LPA), choosing her 90-year-old brother as the person she would like to make decisions on her behalf when she loses the ability to do so.

After her only child learnt about this, he filed an application asking the court to revoke the LPA on grounds that his mother did not have the mental capacity to sign the document.

The 60-year-old son also asked the court to invalidate a statutory declaration his mother had made, in which she effectively acknowledged that two residential properties in her name belonged to her brother.

An LPA is a legal document which allows individuals to appoint another person, known as a donee, to make personal welfare and financial decisions on their behalf if they lose mental capacity in the future.

Individuals making an LPA must have the mental capacity to make their own decisions when they sign the document in the presence of a certificate issuer, such as a psychiatrist.

The LPA kicks in when the person who signed it loses the mental capacity to make decisions. This is unlike a power of attorney, which is cancelled upon loss of mental capacity. 

In the present case, a psychiatrist who assessed the woman shortly before she signed the two documents certified her capacity to make the LPA.

But a Family Justice Courts judge said it was not safe to make such a conclusion, and granted the son’s application.

In a written judgment published on April 10, District Judge Shobha Nair said the woman’s capacity to sign the documents did not meet the requirements under the Mental Capacity Act.

The judge noted that suffering from a neurodegenerative disease did not necessarily mean that a person lacks mental capacity.

However, the judge had concerns that the woman appeared not to know the extent of her own estate when she was assessed by the psychiatrist, Dr C.

“I was mindful that she did not need to know everything about her estate, but the lack of knowledge in this case was troubling,” said the judge.

Judge Nair said greater caution must be exercised in the context of individuals with neurodegenerative diseases signing an LPA, given their vulnerability.

She noted that Dr C did not explain a section of the LPA form which relates to certain powers given to the donee.

The judge also had doubts that the woman was aware of the contents of the statutory declaration.

The woman was essentially signing a document based on information that Dr C obtained from her brother, the judge added.

Judge Nair was concerned that the woman’s only child was not consulted before the documents were signed.

In fact, her brother’s son is named as a successor, done in the event the 90-year-old is not able to perform his duties.

The judge said it was not explained why the woman would name her nephew as the replacement donee.

The woman, a British national and Singapore permanent resident, has two siblings.

The three lost their parents during World War II and were raised by a couple who adopted them.

Her brother, an American citizen, lives in the United States. Her son lives in Australia with his family.

Both men are medical doctors.

The woman has 21 known bank accounts, term deposits, a securities portfolio of more than $1.6 million, pension, Central Provident Fund payouts and a 70 per cent shareholding in a company that owns a three-storey commercial property.

She is also the sole director and shareholder of a company incorporated in the British Virgin Islands in 1997.

According to her brother, this company belonged to him, and she was holding it on trust for him.

He contends that this company was used to buy two residential properties. Thus, the two properties, including the condominium unit she was living in, belonged to him.

The woman was diagnosed with dementia in 2020.

She was moved to a transitional care facility on Aug 2, 2023, after she suffered a fall.

Given her medical condition, her brother visited Singapore that month to attend to matters relating to the two properties.

He last visited Singapore in 2010.

The woman was seen on Aug 22 and Aug 24 in 2023 by Dr C, who then certified her capacity to sign the legal documents.

The statutory declaration was made before a commissioner for oaths who is also a lawyer.

On Dec 15, 2023, a cognitive neurologist was of the view that the woman had no mental capacity to take care of her personal and financial affairs.

When her son visited her that month, he discovered that she had an LPA issued. He later found out about the statutory declaration.

He was of the view that she could not have had the mental capacity to sign the documents, based on his interactions with her and her medical records.

He said he came to learn that his mother had opened a joint account with two individuals who appear to be her distant relatives.

A sum of $200,000 was withdrawn from an account she held with her sister and placed into this account, he said.

The woman’s brother took the position that the documents were properly signed.

He said he was close to his sister and suggested that the relationship between her and her son was not as strong.

The brother has since appealed against Judge Nair’s decision.

Each man has also applied to be appointed as the woman’s deputy to manage her personal welfare and financial matters.

The judge noted that it would be prudent for a professional deputy to be appointed, given that both men live abroad.