Certificate Issuers of Lasting Powers of Attorney – Important Duties and Risks

As more certificate issuers are certifying LPAs as LPAs become more commonplace in Singapore, it is timely for a reminder of the important responsibilities that certificate issuers play in safeguarding the LPA process. This article aims to remind LPA certificate issuers of their key responsibilities, and to highlight how their involvement will be considered by the courts in the event an LPA is challenged.

The government has been pushing for more people in Singapore to do their Lasting Power of Attorney (LPA), with campaigns encouraging Singaporeans to do LPAs and incentives such as a waiver of the S$75 application up until end March 2026.¹https://www.straitstimes.com/singapore/over-230000-sporeans-have-appointed-someone-to-act-on-their-behalf-if-they-lose-mental-capacity To support such campaigns, many certificate issuers have stepped forward to provide certificate issuing services on a low cost or even volunteer basis.

While it is laudable for certificate issuers to support such initiatives, certificate issuers must not forget the integral role they play in safeguarding the process of LPA applications. Certificate issuers must not see themselves as mere rubber stamps in the process.

This article aims to remind all certificate issuers (whether they are accredited doctors, lawyers or psychiatrists) of the key things to take note, and discusses examples of how certificate issuers would become involved in court proceedings in the event there is a contest of an LPA.

What Every Certificate Issuer Must Note

Certificate issuers must be familiar with their duties under the Mental Capacity Act 2008 and the Mental Capacity Regulations 2010. The Office of the Public Guardian (OPG) has issued a helpful document titled the “Lasting Power of Attorney Certificate Issuer Guide” (the Guide),²https://www.msf.gov.sg/docs/default-source/opg/lpa_certificate_issuer_guide.pdf?sfvrsn=d93ac4a0_14 which summarises the key roles and responsibilities of a certificate issuer.

The Guide sets out the practical steps on certifying an LPA, including detailed steps on how to use the OPG’s online platform OPGO. The Guide also helpfully summarises the following certificate issuer’s roles and responsibilities:

• Avoiding Conflicts of Interest – when a certificate issuer is disqualified from certifying an LPA, for instance for family members.
• Acting as a critical safeguard to ensure:

• The Donor understands that the LPA is a legal document and a deed, the purpose of the LPA and the scope of authority conferred under it;
• No fraud or undue pressure is being used to induce the Donor to create an LPA; and
• There is nothing else that will prevent an LPA from being created.

Importantly, the Guide highlights the good practice of keeping clear and detailed records of the steps that certificate issuers have taken to arrive at their decision to issue an LPA certificate. The OPG may ask certificate issuers for details if there is a challenge to the certification process.

Every certificate issuer should be familiar with the Guide. In the event that an LPA is challenged, the certificate issuer must be prepared to justify the steps he or she had taken, so that the LPA can withstand scrutiny in court.

The following cases demonstrate how the steps taken by certificate issuer(s) have influenced the outcome of the challenged LPA. While in every case there would be other factors including expert evidence which will be considered by the Court in determining if the LPA is ultimately valid, the certificate issuer’s role remains integral in this analysis.

VVC v VVE [2021] SGFC 94

The LPA donor, an elderly man who was suffering from dementia, executed two LPAs on the same date – one under Singapore law and one under UK law. The Plaintiffs are two children of the LPA donor, while the Defendants are two grandchildren of the LPA donor who were appointed as the donees under the Singapore LPA.

The Plaintiffs challenged the validity of the Singapore LPA, alleging the Donor lacked mental capacity and was subject to undue influence by the Defendants’ father.

In considering the challenge to the Singapore LPA, the Court considered the steps taken by the certificate issuer Ms Chua, an advocate and solicitor:

• She went over the LPA with the LPA Donor and satisfied herself that he had the requisite mental capacity to execute the LPA.
• She conducted her assessment without the presence of the Defendants or their father; only the UK solicitor (who was the certificate issuer for the UK LPA) was present, and he corroborated her account.
• She certified that no fraud or undue pressure was used, and the Donor signed the LPA voluntarily.

The Court found “no fault with the process” undertaken by Ms Chua. The Court held that “she had done her duty as certificate issuer and had ascertained that the LPA Donor did indeed have the requisite mental capacity to execute the Singapore LPA”, and that she had “done what was required of her as a certificate issuer” to “ensure that there has been no undue pressure on the donor of an LPA”.

The Singapore LPA was upheld as valid.

WRM v WRN [2023] SGFC 36

P, a patriarch of the family, executed an LPA appointing one of his sons (1^st defendant) and one of his daughters (2^nd defendant) as joint donees. About three months later, the LPA was activated after P was diagnosed with Alzheimer’s disease.

The Plaintiff, who is another of P’s sons’, sought to revoke the LPA alleging that P lacked mental capacity when executing the LPA.

The LPA was certified by one Ms A, an advocate and solicitor. P had been Ms A’s client for about eight years prior to LPA execution and had extensive knowledge of P’s character, personality, and demeanour. Ms A did not keep attendance notes for the LPA certification, which led to the Plaintiff arguing that little or no weight should be given to Ms A’s evidence on the certification of the LPA.

Ms A gave evidence in court of her observations when she certified the LPA:

• P’s manner of speaking was clear and smooth, and his thought process was lucid and logical.
• P chose a son and daughter as his donees, to show and achieve a check and balance between the children.
• P was clear about his displeasure and disappointment with the Plaintiff.
• P was able to instruct Ms A for his donees and/or his replacement donee to act jointly.
• P was his usual self in terms of his demeanour, manner of speaking and thought processes.
• P was able to understand and fully understood her explanations regarding the LPA, P was able to consider and make decisions independently.

Ultimately, the Court accepted Ms A’s evidence as there is no other evidence that Ms A’s evidence was unreliable. The LPA was eventually upheld as valid and the application to revoke the LPA dismissed.

Fortunately, in this case, the lack of detailed attendance notes in this case was not fatal because Ms A was P’s long-time lawyer and the time-period between the certification and the court proceedings was not long.

VKX v VKW [2022] SGFC 16

P is an 88-year-old lady and the mother of seven children. She signed an LPA naming the defendant (one of her sons) as the sole donee.

The Plaintiff (another son) applied to court to seek to revoke the LPA, on the basis that P lacked mental capacity to execute the LPA and was subject to undue pressure by the defendant.

In this case, the Court noted (at paragraph 31) that “if there is one thing that is abundantly clear, it would be that P had attended more assessments than was required… The parties were “doctor shopping” and in so doing have, in my view, done a great disservice to their mother and in fact to the doctors, many of whom were not given full and property information to work with by the defendant”.

The LPA was signed before one Dr E (a general practitioner) as the certificate issuer. In considering the challenge to the LPA, the Court considered the circumstances leading to Dr E certifying the LPA:

• P was brought to Dr E’s clinic by the defendant, another sibling, and a domestic helper, with a pre-completed LPA form to be certified mentally fit.
• Dr E was not informed that P had dementia or that previous doctors had found she lacked mental capacity.
• Dr E was also unaware that P had four other children or was not staying at her home.
• Dr E testified that had he been aware of the aspects detailed above, he would not have certified P as mentally fit for the purposes of executing the LPA.
• Dr E’s assessment was conducted in the presence of the defendant and another sibling, and the defendant was the one who provided Dr E with some of the key information Dr E needed.

Ultimately, the Court held that Dr E’s assessment was fundamentally compromised. The Court observed that the doctors who are certifying LPAs are not “tools in legal battles”, and they “need to be fully apprised of all relevant circumstances surrounding the history and care of the patient“.

The Court declared the LPA as invalid as it is “extremely unsafe” to conclude that P had the requisite mental capacity when she executed the LPA.

WEW v WEX [2022] SGFC 60

P (a 93-year-old patriarch) executed an LPA, appointing his son (Defendant) as the sole donee. The Plaintiff (P’s daughter) sought a revocation of the LPA, claiming P lacked mental capacity and that the certificate issuer “had not conducted the proper procedures nor asked the necessary questions to determine capacity”. In the alternative, the Plaintiff also alleged that the Defendant had exercised fraud or undue pressure on P to execute the LPA.

The certificate issuer was Dr D (a psychiatrist) with 42 years of clinical experience who saw P on two occasions for the purposes of executing an LPA. On the first occasion (which was about 2 months before the actual signing of the LPA), P indicated that he wished to appoint his son (i.e. the Defendant) and wife as donees of power, and Dr D’s assessment was that P had mental capacity to sign an LPA. On the second occasion, Dr D saw P again and P indicated that he wished for the Defendant to be given donee powers solely on account of his wife’s poor health. The LPA was executed accordingly.

Ultimately, the evidence of Dr D was integral to the Court’s decision that the LPA was validly executed. The Court found that Dr D was acutely aware of P’s physical frailty, was aware that P has a daughter (i.e. the Plaintiff) and was observant about the dynamics of people around P. The Court held that there was no evidence that Dr D had reneged from his duty to perform valid observations and tests or that he ignored standard medical practice in assessing P who sought to execute an LPA.

The LPA was upheld as valid.

Key Takeaways

The above examples demonstrate that in the event of a dispute on the LPA, the certificate issuer’s evidence on what was done during the certificate issuance process is integral to the Court. To summarise the key take-aways:

1. Keep as detailed and contemporaneous notes as possible.
2. Be cautious when speaking to Donors who are accompanied by others. Speak to them privately, to ensure that you are confident there is no fraud or undue pressure being exerted on the donor.
3. Ask the donor as many questions as you need to satisfy yourself that the donor knows what he /she is doing. Depending on the situation, you may need to ask more questions relating to the medical history and family/personal circumstances of the patient.
4. As a certificate issuer, you are certifying that (i) the donor has mental capacity; (ii) the donor is not subject to fraud or undue pressure. If in doubt, do not certify.

Reminder of Caution

There have unfortunately been cases where solicitors were sanctioned in connection with their role in certifying LPAs.³See for instance: The Law Society of Singapore v Yeo Poh Tiang (Yang Baozhen) (2024) SGDT 6; Law Society of Singapore v Sum Chong Mun and another (2017) SGHC 80 In these cases, the mistakes of the solicitors who were disciplined are easily avoidable and should never have happened – the solicitors had certified an LPA even though they did not personally witness the signature of the Donor. It should be basic knowledge to all certificate issuers that the Donor must be physically present before the certificate issuer during the certification.

Certificate issuers should, however, not be too concerned about personal liability or disciplinary action if they have done their duties properly. The author is not aware of any case of a certificate issuer being punished just because the LPA is eventually found to be invalid. It is the author’s view that if certificate issuers carry out their duties as certificate issuers properly and diligently, they should be confident that they will not find themselves in trouble even in the unlikely event that the LPA is ultimately found to be invalid.

Ultimately, the duties of certificate issuers (e.g. to avoid conflicts of interest, to ensure mental capacity and to ensure no fraud or undue pressure) are in many ways akin to the duties of solicitors preparing wills. The following guidance of the Court of Appeal in Loh Ah Cheow v Ng Hock Guan [2009] 3 SLR(R) 1079 at [73] – [74], which although in the context of solicitors’ preparation of wills, can be adapted as good wisdom for certificate issuers in the context of LPAs:⁴These principles in Loh Ah Cheow v Ng Hock Guan (2009) 3 SLR(R) 1079 was also applied in the context of a lawyer preparing irrevocable powers of attorney and inter vivos gifts of significant assets: Goh Yng Yng Karen (executrix of the estate of Liew Khoon Fong (alias Liew Fong), deceased) v Goh Yong Chiang Kelvin (2021) 3 SLR 896 at (142)

“The preparation of a will involves serious professional responsibilities, which solicitors must uncompromisingly observe and discharge. Regrettably, it seems to us that, all too often nowadays, solicitors appear to consider the preparation of a will to be no more than a routine exercise in form filling. This is wrong. Before preparing a will, the solicitor concerned ought to have a thorough discussion with the testator on all the possible legal issues and potential complications that might arise in the implementation of the terms of the will. The solicitor ought to painstakingly and accurately document his discussions with and his instructions from the testator. …

74    In our view, the solicitor concerned should also conscientiously seek to avoid being in any situation where a potential conflict of interest may appear to exist. If the solicitor might be perceived as anything less than a completely independent adviser to the testator, he ought not, as a matter of good practice, to be involved in the explanation, the interpretation and the execution of the will. In particular, exceptional restraint and care are called for if the solicitor concerned has a pre-existing relationship and/or past dealings with the sole beneficiary under a will, and all the more so if the will has been prepared urgently and executed in unusual circumstances with that sole beneficiary’s active involvement.”

This analogy between a certificate issuer certifying an LPA and a solicitor preparing a will was also drawn in the very recent case of XKF v XKG [2025] SGFC 33⁵The author understands that the decision is currently on appeal, so readers are encouraged to look out for updates, where the Court revoked an LPA on the basis that the donor (who was suffering from a neurodegenerative condition) did not have the mental capacity for the LPA. The following observations of the Court are highly relevant for certificate issuers:

• “A LPA provides the opportunity to exercise one’s autonomy in choosing the person or persons one would like to manage one’s personal welfare and financial matters, if and when one loses capacity to do so. Much like the choice of an executor of a will, a donor’s choice of donee is rooted in trust. The making of a LPA must therefore always be reflective of the choice of the donor who can only make that choice with cognitive awareness and an understanding of the powers he is vesting in a donee.” (at [9])
• “It is my view that while perfection is certainly not called for, greater caution must be exercised in the context of individuals with neurodegenerative diseases executing a LPA, given their vulnerability. In fact, what the LPA form says and what appears to be understood by some medical professionals are at odds.

… [the certificate issuer] did not read or explain Section 4 of the LPA which relates to “Other Powers” that were given to the donee. He took the position that some of the powers are not important to be read back. I do not agree. A LPA unlike an application for deputyship, is executed at a time when the donor is deemed to have capacity. It is important therefore that all matters on the form are to be read and explained and not just ones that the certificate issuer deems more appropriate. The wording on the LPA itself calls for this. This need is especially critical when the donor is a person known to have a neurogenerative disease. The standard of care is high, a standard that can only be met if all parts of the LPA form are sufficiently explained in the context of establishing that the donor is aware of the breadth of one’s estate and the powers in relation to that estate that is being vested in the appointed donee.” (at [16])

Conclusion

More and more people in Singapore are registering LPAs, with the target for registrations of LPA among Singapore citizens aged 50 and above expected to exceed 240,000 by the end of 2025.⁶https://www.msf.gov.sg/media-room/article/multi-agency-effort-to-encourage-legacy-planning-drives-significant-increase-in-lasting-power-of-attorney-and-advance-care-planning-registrations This, coupled with the fact that Singapore faces a rapidly aging population, suggests that the duties of certificate issuers may be tested more frequently. Certificate issuers should therefore continue to exercise their duties properly and to keep updated on any developments in the law, to ensure that they continue to play their role in safeguarding the process of LPA applications effectively.

The author wishes to express his gratitude to Mr Goh Kok Yeow, Ms Kee Lay Lian and Mr Chong Yue-En for their insights on the article. All errors remain the author’s own.

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