Lasting Power of Attorney (English)

ADMINISTRATION OF MUSLIM LAW ACT

(CHAPTER 3, SECTION 32)

FATWA ISSUED BY THE FATWA COMMITTEE, ISLAMIC RELIGIOUS COUNCIL OF SINGAPORE (MUIS)

The Fatwa Committee has discussed on the permissibility of the Lasting Power of Attorney (LPA) at the 14^th fatwa meeting on November 27, 2018 and the 16^th fatwa meeting on March 12, 2019.

Fatwa

بسم الله الرحمن الرحيم

الحمد لله رب العالمين ، والصلاة والسلام على سيد المرسلين وإمام المتقين نبينا محمد وعلى آله وأصحابه أجمعين. اللهم أرنا الحق حقا وارزقنا اتباعه، وأرنا الباطل باطلا وارزقنا اجتنابه، وبعد.

Background

1. The Fatwa Committee received an enquiry from the Faculty of Law, National University of Singapore¹ through a letter dated 30 August 2018 regarding the Lasting Power of Attorney (LPA) from Islamic law perspective.

2. Based on the question submitted, the LPA is a legal document that gives the opportunity to an individual, known as the donor, to appoint a donee to legally manage official matters on behalf of the donor. In relation to that, the Centre for Pro Bono and Clinical Legal Education, posed a question to the Fatwa Committee on whether the LPA is in line with Islamic law.

Background of the Lasting Power of Attorney (LPA)

3. The LPA is a legal document that allows a person aged 21 and above (known as the ‘Donor’), who has the mental capacity to voluntarily appoint one or more persons (known as ‘Donee(s)’) to make decisions and act on his behalf in the event when the donor lacks the mental capacity to do so. The donee has the right to make decisions pertaining to the donor’s personal welfare, or property and affairs matters, or both matters.²

4. The donee can only act on the authority given by the donor in the LPA signed. However, there are some decisions that the donee cannot make on behalf of the donor, such as: consenting to marriage, divorce, child adoption, adopting or renouncing a religion, receiving treatment for change of gender, consenting or revoking consent to treatment for sexual sterilisation or abortion, registering or withdrawing an objection regarding the removal of an organ, making or revoking an Advance Medical Directive (AMD) etc.³

5. In the event that a person becomes mentally incapable and has not made the LPA to appoint a donee, a deputy may be appointed by the court to make such decisions. The court may appoint an individual or a licensed trust company as a deputy under the Trust Companies Act (Cap. 336), as prescribed by the Mental Capacity Act.⁴

6. n ensuring that the welfare of the donor is not neglected or abused by the donee or the deputy, the court has the power to prosecute any donee or deputy, and revoke their powers if necessary, should there be any allegations of abuse or ill-treatment.

Considerations by the Fatwa Committee

7. The Fatwa Committee has considered this issue and looked at it from two perspectives, namely:

a. Earlier fatwa decisions relating to Advance Medical Directive (AMD) and principles of Islamic Law relating to Advance Care Planning (ACP); and

b. The concept of self and property management in Islam.

Earlier fatwa decisions relating to Advance Medical Directive (AMD), and the principles of Islamic law relating to Advance Care Planning (ACP)

8. In 1994, the Fatwa Committee decided that Muslims are allowed to draw up an Advanced Medical Directive (AMD). This is a legal document that a person signs in advance to inform the doctor that he does not want any extraordinary life-sustaining treatment to be used to prolong his life, in the event that he becomes terminally ill. The fatwa decided that those who refuse the treatment can be assumed to opt for patience and to do away with extraordinary interventions as he and believes that there is a prescribed time for every person to die.

9. Advance Care Planning (ACP), on the other hand, is an instrument that provides an opportunity for individuals to make early planning in determining his desired form of care and medical treatment when he is in critical condition and unable to make any decisions. In this case, the Office of the Mufti is of the view that Islam allows a person to draw up the ACP in determining the care preferences and treatment options.

The concept of self and property management in Islam

10. The Fatwa Committee finds that there are several elements in the Islamic fiqh tradition, which are similar to the concept of LPA, such as Wiṣāyā.⁵

11. There are also other concepts related to Wiṣāyā such as the concept of Wakālah and Wilāyah.⁶ These three concepts are based on the Quranic verse:

Which means: “... If the debtor is feeble-minded or weak or cannot dictate himself, then his guardian should dictate with fairness…” (Surah al-Baqarah, verse 282)

13. The Islamic principles behind these concepts are in harmony with the provisions of law which authorize the appointment of a donee to manage the affairs and property of an individual in the situation where they lack mental capacity.

Decision of the Fatwa Committee

14. Based on the above considerations, the Fatwa Committee decided that the LPA is a form of planning which is permissible under Islamic law and is in line with the objectives of the Shariah (Maqāṣid al-Sharī'ah). It is also consistent with the Islamic principles which encourage Muslims to plan and prepare for his future.

15. The Fatwa Committee is also of the view that the legislative provisions in place to safeguard the interest of the donor are already in accordance with the Islamic legal maxim of Sadd Zarā'i,⁷ which would thus prevent any possibility of the donee or the deputy abusing the authority given.

16. The Fatwa Committee wishes to emphasise that a Muslim should ensure that the plans made will serve to protect his welfare and well-being throughout his life. The donor also needs to exercise due diligence appointing trustworthy individuals whom he believes can best execute the entrusted responsibilities according to legal and religious requirements.

والله أعلم ، وبالله التوفيق ، وصلى الله على سيدنا محمد وعلى آله وصحبه وسلم.

DR MOHAMED FATRIS BIN BAKARAM

CHAIRMAN, FATWA COMMITTEE

MUFTI OF SINGAPORE

ISLAMIC RELIGIOUS COUNCIL OF SINGAPORE

[1] Centre for Pro Bono and Clinical Legal Education

[2] https://www.msf.gov.sg/what-we-do/opg/lasting-power-of-attorney/what-is-a-lasting-power-of-attorney - The Lasting Power of Attorney

[3] Office of the Public Guardian, A Guide to: The Lasting Power of Attorney, p. 15.

[4] https://www.msf.gov.sg/what-we-do/opg/deputyship/what-is-a-court-appointed-deputy - What is a Court appointed Deputy; See also, Section 20, Mental Capacity Act (Cap. 177A).

[5] Wiṣāyā or Īṣā’ means a trust given to a person to administer and manage the affairs of musī (the person who entrusts) once he passes away. Such matters include administering the affairs of his children, executing a will, settling debts and returning the goods in his custody. Please see Al-Zarqā, Muṣṭafā Aḥmad, Al-Madkhal al-Fiqh al-’Ᾱm, vol 1, pg 54-55 & 628-629; See also Al-Zuḥaylī, Wahbah, al-Fiqh al-Islāmī wa Adillatuh, vol 8, pg 131; Muṣṭafā al-Khin and Muṣṭafā al-Bughā, Al-Fiqh al-Manḥajī, vol 5, pg. 59.

[6] Wakālah is a form of transactional contract, where one authorizes another to perform certain affairs, executed during the life of the principle. Wilāyah, (or guardianship) on the other hand, is a legal authority according to Islamic law to manage the welfare of an individual or property who is restricted from doing so for reasons such as bankruptcy, being underage, those who are feeble-minded (Al-Safīh) and imbecile (Al-Ma 'tūh) etc. The authority of Wilāyah to manage the affairs of others may occur naturally due to kinship between two parties. Such as a father managing the affairs of his child or a representative authorised via a will or ordered by the Court to manage the affairs of other individuals. Please refer to: Al-Syarbīnī, Mughnī Al-Muḥtāj, vol 2, pg. 281. See also, Al-Buhūtī, Kisyāf al-Qanā’, vol. 3, pg. 416-452; Ibn Qudāmah, Al-Mughnī, vol. 4, pg. 510-512; Al-Damīrī, Al-Durar fī Syarḥ al-Mukhtaṣar, vol. 1, pg. 1634-1636; Ibn ‘Ᾱbidīn, Rad al-Muḥtār, vol. 9, pg. 200-219; ‘Abd al-Karīm Zaydān, Al-Madkhal li Dirāsah al-Syarī’ah al-Islāmiyyah, pg. 279; Muḥammad Salām Madkūr, al-Madkhal li al-Fiqh al-Islāmī: Tārīkhuh wa Maṣādiruh wa Naẓariyātuh al-‘Ᾱmmah, pg. 472-473; ‘Alī Al-Khafīf, Aḥkām al-Mu’amalāt al-Syar’iyyah, pg. 281-284.

[7] The concept of Sadd Zarā’i is to block any means which could lead or has the potential to lead to something unlawful and harmful.