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
(c) 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;
(c) 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 | Dreamstime.com)