Power Of Attorney In Real Estate

To explain in the easiest way, a power of attorney is a legal procedure that allows you to appoint a person or multiple persons to manage your legal or financial affairs on your behalf. 

This can be done in a situation where you yourself are unable to perform such duties and therefore need another individual or party to step in and handle it for you. 

For example, let’s say you’re moving to a different country and you simply don’t have the time to engage in such transactions, or maybe you just got into a horrible accident and are physically unable to do the needful. 

In such cases, you as the ‘donor’ can appoint one or more people as ‘donees’ to handle all your legal and financial obligations on your behalf. 

The ‘legal’ or ‘financial’ affairs in this situation can refer to transactions such as buying or selling of property or renting and managing any private property owned by you.

All of this is done via a power of attorney document, which states the decision powers of the donee and where this legal power actually ends. 

So, in other words, this document states precisely what the donee is allowed or not allowed to do when handling your affairs. 

It is important to note that a general power of attorney is quite different from a lasting power of attorney. 

A general power of attorney is the common legal medium used in most situations where the donor is physically unable to carry out his affairs in person. 

Meanwhile, lasting power of attorney is used when the donor in question is facing some form of mental incapacitation and therefore needs to give the donee full power to act on their behalf.

Before we discuss the process of creating and using a lasting power of attorney (LPA), let us first understand why it’s necessary and what exactly is considered mental incapacitation. 

As mentioned before, LPA is used when the donor cannot carry out their duties due to having some form of handicap of the mind. 

We can understand from the Mental Capacity Act that anyone who cannot make a rational decision by himself or for himself due to a mental can be considered mentally incapacitated. 

It can be due to a stroke, an accident that caused a form of brain trauma, or a mental illness such as dementia or Alzheimer’s. 

It can be either a permanent effect or a temporary one that might be fixed in the near future. 

Naturally, in such situations, a trusted donee is employed to carry out the responsibilities of the donor who is now mentally unable to carry out financial or legal functions independently.

If the donor has not created an LPA, any legal affairs of the person in question can only be conducted after receiving a court order. 

In other words, the court will appoint a deputy to who will take care of the affairs of the mentally incapacitated person. 

This might not be a great solution for most, as obtaining a court-ordered deputy is a lengthy and financially straining process. 

Moreover, this would also mean that the relatives and friends of the donor will have no control over how the concerned affairs are handled, nor will they have any say in who the court appoints to act on the donor’s behalf. 

Alternatively, having an LPA whom the donor hand-picked is no doubt a much better solution. 

Now, let’s say that you are going through a mental illness and would like to hand over a lasting power of attorney to someone else. 

You can pick professional donees, like a lawyers, social workers, or even an organisation to act on your behalf in exchange for some payment. 

Note that your spouse or any of your blood relatives are not allowed to become your professional donees. 

Such individuals can instead become non-professional donees and handle your affairs without any form of monetary payment. 

Such a person must be above 21 years old and must not be financially bankrupt.

In Singapore, there are 3 main steps when it comes to applying for a lasting power of attorney. 

Firstly, your donee will have to fill in one of the two LPA forms provided by OPG online. 

Form 1 is the standard application form which can be used should you want the donee to become a general power of attorney. 

This will allow the donee to have limited powers, the nature of which will be stated in the POA document. 

Alternatively, you can see Form 2 if you want to bestow some customised powers to your donee.

Going this route will require you to hire a lawyer who can handle the wording and drafting of powers which will then be attached as an annexe to Form 2.

The second step involves having the application form certified by an LPA certificate issuer for a small fee.  

This is done so that the donee understands what being a power of attorney means and what their duties are once they take on this responsibility. 

Naturally, the donee should understand the legal consequences if they decide to abuse this power.

By default, a power of attorney should stick to their given responsibilities and under no circumstances should they make decisions that harm the donor. 

The entire process is also necessary for the authorities to determine whether or not you, the donor, is being duped or pressured by the donee into creating the LPA. 

That being said, the certificate issuer should be a psychiatrist, doctor or someone practising law. 

Note that you can also use the lawyer whom you hired to draft the LPA to certify the application form. 

Now, for the final step, all you have to do is sign the LPA application form and mail it to OPG. 

Note that this application should be mailed within 6 months of the drafting of the LPA. 

OPG will get back to you and ask you to make the necessary payments, plus an additional emergency fee should it apply, and provide any other required details for the procedure.

After your application form has been accepted, you will be given a mandatory waiting period of 3 weeks, within which you can object to the LPA should you change your mind. 

If no such objection is made, your LPA will officially be registered, and you will be sent a soft copy of the same. 

The LPA’s hard copy can also be requested by paying a fee of $ 25 which can be used as the official true copy of the LPA.

There used to be an application fee of approximately $ 75 for Form 1 , however, this has been removed by OPG for all Singapore citizens until March 31st 2023. 

Meanwhile, the application fee associated with Form  2 remains the same, i.e., $ 200. 

On the other hand, foreigners and Singapore permanent residents are subject to different rates regarding LPA applications. 

For Form 1, foreigners are obligated to make a payment of $ 250, while that amount is $ 100 for Singapore permanent residents.

For Form 2, foreigners are obligated to make a payment of $ 300, while that amount is $ 250 for Singapore permanent residents.

The 5 Types Of Power Of Attorney In Singapor

For those of you who don’t know, there are 5 types of power of attorneys in Singapore, each one carrying a specific set of powers and limitations. 

General Power Of Attorney

First up, we have the General Power of Attorney, which allows the donee to act on your behalf under any circumstance unless specified otherwise by the POA document. 

This allows the donee to make financial and legal transactions on your behalf. 

This means that they can file your tax returns, make transactions regarding your property or even enter a contract in your name. 

Of course, all this is valid as long as there are no limitations regarding any of these situations mentioned in the POA document.

What’s more, the powers of the donee are valid until you actually revoke them yourself.

Additionally, the POA powers can be revoked if you pass away or become mentally incapacitated.

Finally, it can also be revoked upon the triggering of a specific event set by you in the POA document. 

For instance, lets say that you are currently hospitalised, in this case, you can set the POA document so that the donee’s powers are revoked once you are released from the hospital. 

Specific Power Of Attorney/Non-Durable Power Of Attorney 

Under the terms of a specific power of attorney, your donee will not have any of the normal powers valid as a general POA. 

Instead, they will only be authorised to make decisions for matters which are specified in the POA document itself. 

The donee, in this case, will only have non-durable power, which can only be used for a specific purpose or under a specific circumstance. 

For instance, you may appoint someone as a specific POA only when it comes to making decisions in stock market trade. 

In that case, the donee’s powers will only be limited to making stock market trades on your behalf and nothing else. 

Similarly, you can appoint a specific power of attorney/non-durable power of attorney only to handle affairs related to your private condominium. 

This would effectively allow you to have a private property power of attorney that handles real estate sale or purchase transactions on your behalf. 

You can revoke the powers of a specific POA if you want, or they can be automatically revoked if you pass away or become mentally incapacitated or upon the triggering of a particular event. 

HBD Power Of Attorney

This is probably the only case when a power of attorney has no administrative powers whatsoever and only has the ability to perform duties related to HBD flats. 

An HBD POA is usually created when you have purchased a home but cannot attend the necessary appointments regarding the purchase. 

In this case, you can appoint a donee to carry out the day-to-day affairs such as collecting the keys or attending the signing of any legal documents regarding the HBD flat. 

Such legal documents include Sale or Lease agreements, Option to Purchase, Deed of Assignment, Mortgage in Escrow and Lease In Escrow. 

Normally, people create an HBD POA when they are situated in a different country and cannot personally sign the required legal documents themselves. 

In such cases, they usually hire an attorney who acts as a professional donee and makes the necessary transactions. 

Conditional/Springing Power Of Attorney

A power of attorney registered as conditional can only activate their powers once a specific event has been triggered. 

Obviously, the details and circumstances of this particular event are established and written down in the POA document itself. 

For example, you can set a power of attorney conferring to the donee only during those times when you are travelling overseas and therefore cannot attend to any legal matters physically. 

So naturally, any action executed by the donee as a POA while you are physically present in the country will not be valid. 

Lasting Power Of Attorney 

A lasting power of attorney is a legal instrument used when a donor has become mentally incapacitated and can no longer make rational decisions regarding legal or financial affairs.

This type of POA gives numerous powers to the donee, including any decision-making powers regarding the donor’s personal health, property, and finances. 

It is done so that the donor and relatives of the donor can avoid any financial uncertainty or concerns of well-being if the donor loses normal mental capabilities. 

A lasting power of attorney is completely responsible for the physical and financial well-being of the donor and must make the decisions keeping the best interest of the donor in mind. 

Making decisions that go against the donor’s well-being will have severe consequences punishable by law. 

Because of the risks involved, any LPA has to be certified by a certified issuer without fail. 

This is done so that the authorities can ensure that there is no fraudulent activity or physical or psychological coercion involved. 

Should the donor regain his mental capacity later, they can start making legal decisions again without revoking the donee’s powers. 

In such a circumstance, both individuals will have to engage in a mutual sharing of power. 

A power of attorney can be created by any person who chooses another person to act on his behalf regarding the fulfilment of certain legal and financial duties. 

The person bestowing the powers, i.e., the donor, should create a document to legally award said powers to the appointed person, the donee. 

The execution of the POA document should be verified by an affidavit, a statutory declaration made by a witness, or an impartial person who knows the donor’s signature. 

Alternatively, the power of attorney executed can also be verified by a Commissioner for Oath’s signature, who is a witness to the process and any other evidence that the supreme court registrar finds satisfactory.

One must have done the following requirements for a POA to be acceptable for use. 

• The relevant application form must be submitted. 
• The original passport of the applicant must be submitted along with the application.
• Photocopies of the 1st and last page of the donee’s passport must be submitted.
• The last page of the document must have the applicant’s photograph and signature. 
• The document must be notarized by the notary public in Singapore.
• The photocopy of the POA must be sent along with the application form. 
• The applicant must submit 2 photos as stickers. 
• The applicant’s citizenship must be mentioned.
• Applicants must wait 3 to 5 days for the processing of the application.

An applicant of non-Indian nationality who needs attestation of the power of attorney executed should be aware of the following requirements before applying to the collection centre. 

• The POA should be notarized by a notary public, and a photograph must be fixed with it. 
• The executor’s signature should be on every page of the POA and should include a notary public stamp.
• The photograph must also be signed and stamped by the notary.
• Photocopies of the national registration identity card (NRIC) as long as the original must be brought.
• If there are any documents not written in English, there must be English translations provided for those documents. These documents can be translated by gazette organisations such as DAV school, Commissioner of Oaths, Gujrati Society etc., or an official translator. Note that both the original as well as copies are required for the attestation process.
• The document has to be notarized first if it did not come from India or if the applicant is not of Indian nationality. 
• The power of attorney must be registered within 3 months under the correct State government’s land department.

It is important to note that self-attested notarized power of attorney documents are valid for Indian nationals. 

If that is the case for you, you must submit photocopies of the self-attested power of attorney documents along with the original. 

The creation of POAs is an intricate affair and must be done with the utmost caution and vigilance. 

After all, it is a document which gives a person the right to make legal decisions for another and, therefore, is not a matter to be taken lightly. 

Although the list of requirements is long, it is important to understand that it is necessary to identify and register the people who will be acting as donors and donees. 

Moreover, important legal documents such as a notarial certificate serve as proof of powers bestowed on any donee and are therefore paramount for any POA document.

A lasting power of attorney begins when the donor becomes mentally incapacitated and lasts until their death; hence the term; lasting.

Meanwhile, a general or specific POA is activated upon the mentioned date in the document or when an event mentioned in the document is triggered. 

Similarly, the POA can last till the mentioned end date, when the donor revokes the power, or if the donor becomes mentally incapacitated or passes away. 

Alternatively, they can also be revoked if the donee triggers a particular condition preset in the POA document. 

A power of attorney gives your donee a certain set of powers bestowed by you to act on your behalf while you are still of a capable mind. 

This is generally used when you have to go overseas or if you are physically handicapped due to an accident. 

It can be revoked by you anytime and will automatically be revoked in case you become mentally incapacitated.