Law & seniors

Get famil­iar with cer­tain laws as you never know just when you might need them.

BY: Eleanor Yap

With the recent news about the Tri­bunal for Main­te­nance of Par­ents and age­ing par­ents not get­ting due finan­cial sup­port from their chil­dren, we decided to find what other laws in Sin­ga­pore that seniors need to be aware of. We chat with Hri Kumar, direc­tor of law firm, Drew & Napier, and who also is an MP for Bishan-​Toa Payoh GRC:

The Tri­bunal for Main­te­nance of Par­ents has recently come to the fore­front. MCYS’ Dr Vivian Bal­akr­ish­nan noted in an arti­cle that it is an “esca­lat­ing sit­u­a­tion” where age­ing par­ents are not get­ting due sup­port from their chil­dren. What are your thoughts and have you come across such cases?

Unfor­tu­nately, yes. The causes are var­ied, but the most com­mon rea­son is that the chil­dren are unable to sup­port their par­ents because of their own finan­cial com­mit­ments. There are some gen­uine cases of real hard­ship, but in some, the real rea­son is that the chil­dren regard sup­port­ing their par­ents as just another finan­cial bur­den, which does not rank high on their list of pri­or­i­ties. I have dif­fi­culty with that. Chil­dren are also a finan­cial “bur­den”, but all par­ents I know con­sider hav­ing chil­dren a bless­ing and will gladly make sac­ri­fices to give them the very best. Why should we not expect chil­dren to treat their par­ents the same way when the tables are turned?

So if some­one is fac­ing such a sit­u­a­tion, what advice would you give and how does one pro­ceed to get finan­cial sup­port from their children?

The Main­te­nance of Par­ents Act (Cap. 167B) exists to give par­ents the right to apply to the Tri­bunal for an order that one or more of his chil­dren pay them a monthly allowance (or peri­odic pay­ment), or a lump sum for his maintenance.

But it is a very dif­fi­cult deci­sion to take action against your own chil­dren. I would advise them to speak to their chil­dren first, and if that is not pos­si­ble, to get a rel­a­tive or fam­ily friend known to or trusted by all the par­ties to medi­ate. Bet­ter keep it within the fam­ily first. Once it goes to the Tri­bunal, the rela­tion­ship may become irrepara­ble. (For more infor­ma­tion, call the Tri­bunal for Main­te­nance of Par­ents hot­line at 1800-​258 5128.)

If they are unable to have legal rep­re­sen­ta­tion is the Legal Aid Bureau the answer?

Par­ties are not allowed to engage lawyers to rep­re­sent them before the Tri­bunal. The pur­pose is to cre­ate a level play­ing field and to make things as sim­ple and cost-​effective as pos­si­ble. In any event, no dif­fi­cult legal issues are likely to arise in such mat­ters, so no one should feel prejudiced.

What are some other impor­tant laws that seniors should be aware of in terms of their rights? Could you briefly explain each of them?

• CPF Act (Cap. 36) – This sets out the rel­e­vant pro­vi­sions in respect to Medishield and Medis­ave. These are impor­tant poli­cies, which help senior cit­i­zens and their fam­i­lies man­age their med­ical costs. In addi­tion, the CPF Act also pro­vides for the Life­long Income Scheme, which helps to pro­vide CPF mem­bers with a monthly income for the remain­der of their lives.

• Med­ical and Elderly Care Endow­ment Schemes Act (Cap. 173A) – This pro­vides for the Elder­care Scheme and Elder­care Fund. This helps to defray step-​down care costs for the elderly, by pro­vid­ing sub­si­dies to organ­i­sa­tions, which pro­vide such step-​down care.

• Men­tal Dis­or­ders and Treat­ment Act (Cap. 178) – A rel­a­tive may apply to the Court to inquire whether any per­son is or is not of unsound mind and inca­pable of man­ag­ing him­self or his affairs. Such per­son will be given rea­son­able notice of the appli­ca­tion, and may be sub­ject to exam­i­na­tion by the Court or by any per­son from whom the Court may require a report.

If the per­son is of unsound mind, the Court may appoint a Com­mit­tee or Com­mit­tees of Per­sons or of his Estate. If the per­son is not dan­ger­ous to him­self, only a Com­mit­tee of Estate will be appointed. These Com­mit­tees have the pow­ers to man­age the person’s estate. How­ever, such pow­ers do not include, among other things, the sale of immov­able property.

The Court may order the dis­posal of the person’s prop­erty (mov­able or immov­able) if it is expe­di­ent for the pur­poses of dis­charg­ing the person’s debts, dis­charg­ing any encum­brance on his estate, main­tain­ing him­self and his fam­ily, and the pay­ment of costs of any pro­ceed­ing under the Act. Lastly, the Court may order that a per­son of unsound mind be received into a hos­pi­tal and send him into suit­able custody.

• Men­tal Capac­ity men­tal Act 2008 – Per­sons are able to exe­cute “Last­ing Pow­ers of Attor­ney” (see Sec­tion 11), which con­fer on the donee(s) the author­ity to make

deci­sions in respect to the fol­low­ing mat­ters: The donor’s per­sonal wel­fare; or the donor’s prop­erty and affairs; when the donor no longer has the capac­ity to make such decisions.

Wills are also cru­cial. Can you cite one or two cases that you have where there was no Will? If there is no Will, what exactly happens?

Hav­ing a Will makes it much eas­ier to deal with the estate. Fam­ily mem­bers can also take com­fort in know­ing that the wishes of their loved one are being respected. If a per­son dies with­out a Will, he is taken to have died intes­tate. In such a sit­u­a­tion, the law pre­scribes how his assets are to be divided, and this depends on whether he has any fam­ily sur­viv­ing him. How­ever, the admin­is­tra­tion pro­ce­dure is a bit more cumbersome.

Is it nec­es­sary to engage a lawyer or can some­one write a home-​made Will and what ele­ments are impor­tant in the Will for it to stand up in court, if need be? What do peo­ple for­get when putting a Will together?

No, it is not nec­es­sary to engage a lawyer to draft a Will. The for­mal valid­ity of a Will is deter­mined by the pro­vi­sions of the Wills Act (Cap. 352). The rel­e­vant pro­vi­sions are briefly sum­marised below:

(a) The Will can only be made by some­one who is above 21 years old (“Testator”);

(b) The Will has to be in writ­ing and signed by the Tes­ta­tor, in the pres­ence of two or more wit­nesses, who shall also sign the Will in the pres­ence of the Tes­ta­tor; and

© These wit­nesses and their spouses can­not be ben­e­fi­cia­ries under the Will.

There is no spe­cific form for a Will. How­ever, most Wills should have the fol­low­ing clauses:

(a) Com­mence­ment clause – This sets out the iden­tity of the Tes­ta­tor, ensur­ing there is no ambi­gu­ity as to the maker of the Will;

(b) Revo­ca­tion clause – Revok­ing any pre­vi­ous Wills or tes­ta­men­tary instru­ments. This ensures no ambi­gu­ity caused by any­one ten­der­ing ear­lier ver­sions of a Will and seek­ing to enforce the same;

© Appoint­ment of Execu­tor and Trustees – This iden­ti­fies who the Tes­ta­tor is entrust­ing to man­age his affairs and to act in accor­dance of his Will. These Execu­tors should be above 21 years of age, in order to avoid any dif­fi­culty in man­ag­ing the Testator’s affairs;

(d) Spe­cific gifts – In the event the Tes­ta­tor wishes for a spe­cific gift to be bequeathed to a spe­cific ben­e­fi­ciary, he should iden­tify the same;

(e) Resid­uary gifts – The Tes­ta­tor should set out what is to be done with any part of his estate, which has not been specif­i­cally dis­posed of. Oth­er­wise, this part of his estate will be dis­posed of under the Intes­tate Suc­ces­sion Act; and

(f) Tes­ti­mo­nium and attes­ta­tion – There are spe­cific pro­vi­sions gov­ern­ing the sig­na­ture of the Will, under Sec­tion 6 of the Wills Act (Cap. 352).

One com­mon mis­take in Wills is the fail­ure to pro­vide ade­quate pro­tec­tion to the Execu­tor, by spelling out clearly the pow­ers of the Execu­tor and when he is to be released from his duties. Wills tend to focus solely on who gets what, and not how the assets are to be dis­trib­uted. With­out ade­quate pro­tec­tion and guid­ance, Execu­tors may have dif­fi­culty exe­cut­ing the Testator’s wishes. As a prac­ti­cal mat­ter, the Tes­ta­tor should inform his Execu­tor of the exis­tence of the Will and pro­cure his agree­ment to act. He should also inform the Execu­tor and his fam­ily mem­bers of where the Will is kept.

In addi­tion, the Pub­lic Trustee main­tains a con­fi­den­tial Wills Reg­istry, which will main­tain infor­ma­tion relat­ing to the Will, includ­ing the date of the Will, the cus­to­dian of the Will, the solic­i­tor who drew up the Will, and the par­tic­u­lars of the Tes­ta­tor. (Click here for more infor­ma­tion on the Wills Reg­istry.)

How much is it to engage a lawyer to write a Will?

The charges may vary. You should ask upfront for an esti­mate or a cap.

How often should a Will be updated and why?

A Will should be updated when there is a mate­r­ial change in the Testator’s cir­cum­stances, includ­ing the fol­low­ing – the birth of a child, a mar­riage or divorce in the fam­ily, a change in the sta­tus of depen­dent chil­dren or impend­ing retire­ment. This will ensure that the Testator’s inten­tions as set out in the Will do not become ambigu­ous as a result of such changes.

Fur­ther, it impor­tant to note that under Sec­tion 13 of the Wills Act (Cap. 352), every Will shall be revoked by mar­riage. Tes­ta­tors should there­fore exe­cute a new Will after marriage.

What if you are a Muslim?

In the case of Mus­lims, only one-​third of their assets may be dis­posed of accord­ing to the wishes of the Tes­ta­tor. In addi­tion, the Mus­lim Testator’s dis­po­si­tion of his assets has to be con­sented to by his heirs, as deter­mined under Islamic law. If such con­sent is not obtained, the one-​third together with the remain­ing two-​thirds will have to be dis­posed of accord­ing to the rules of suc­ces­sion under Islamic law.

The oper­a­tion of Islamic law in Sin­ga­pore is gov­erned by the Admin­is­tra­tion of Mus­lim Law Act (Cap. 3) (“AMLA”). Specif­i­cally, Sec­tions 110 to 125 set out the rel­e­vant pro­vi­sions gov­ern­ing the dis­po­si­tion of prop­erty under the AMLA.

Any­thing you would like to add?

Peo­ple should plan for their retire­ment as soon as they start earn­ing an income. Finan­cial issues can cre­ate fric­tion in any rela­tion­ship. While we all hope that our chil­dren will take care of us in our golden years, it always pays to be pre­pared for unfore­seen matters.

(PHOTO CREDIT: DAY BOOK © Petro | Dream​stime​.com)