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Need to make a Mental Capacity Act application in Singapore?
As Singapore’s population grows older, it is only natural that sooner or later, you will feel the impact of mental illnesses and incapacity on yourself, your family, and loved ones.
At I.R.B. Law, we understand that life is full of uncertainty: even if you are healthy and energetic one day, the next day you may be in a situation which causes you to lose mental capacity when you least expect it.
Whether it comes as a result of dementia, stroke, or injury, loss of mental capacity is not necessarily associated with old age. This is why it is vital that you make preparations in advance to appoint a person or persons who you trust make decisions in your interests if you become mentally incapacitated.
An experienced lawyer can help you to make these preparations, and ensure that your interests are protected if you find yourself in a situation which causes you to be mentally incapacitated.
The Mental Capacity Act lays out a legal framework for relatives and loved ones to make decisions on behalf of persons who are unable to make those decisions themselves.
Under the Act, there are two ways by which you may obtain the legal power and authority to make decisions on behalf of an incapacitated person.
1. A Lasting Power of Attorney.
2. A Court-appointed Deputy.
Drawing on our extensive experience of helping clients from all walks of life, our experienced team of lawyers is ready and willing to assist you in making an application under the Mental Capacity Act so that it your interests, or those of your relative or loved one, are fully protected.
Experience in Private Law
Specialists in Mental Capacity Act Applications
Outstanding Track Record of Success
Personalised Care and Attention
What is a Lasting Power of Attorney?
A Lasting Power of Attorney (“LPA”) is a legal document which allows you to appoint one or more persons – known as ‘donees’ – to make decisions on your behalf if you are found to lack mental capacity. The donee only obtains the legal authority to make decisions for you once you lose mental capacity.
Making an LPA is the simplest way to ensure that your welfare and interests are protected if
you lose mental capacity.
In the event that you lose mental capacity, an LPA automatically grants the power to make decisions on your behalf to a trusted person of your choice. With an LPA, you obtain certainty and peace of mind as you can rest assured that potential conflicts among your loved ones will be avoided.
Your relatives and loved ones will also save time, money, and stress, as they can immediately begin making arrangements for your welfare, property, and affairs without having to apply for permission from the Court. Importantly, this means faster access to your accounts and insurance policies to pay for your medical treatment and care.
The donee can be any person who agrees to act as your donee, is above the age of 21, and is not a bankrupt. It is important to bear in mind that only a natural person, and not a company, is permitted to make decisions about your personal welfare.
Alternatively, you may prefer to engage a professional service provider to manage your property and affairs, including sale, rent or mortgage of your property, and management of your accounts, investment, and taxes.
For case such as these, you may appoint a company
licensed under the Trust Companies Act.
The LPA allows donees to act in two general areas – the donor’s personal welfare, and his or her property and affairs.
You may grant your donees the power to deal with areas that include your personal welfare, property and affairs. Depending of the type of LPA that you choose, you may wish to grant the donee wide-ranging powers to make decisions affecting these areas.
On the other hand, you might intend to restrict the kinds of decisions that your donee(s) can make. Your lawyer can advise you on whether to grant wide-ranging or specific powers and how to make your intentions clear in the LPA itself.
Yes. Provided that you have mental capacity, you may revoke your LPA personally at any time. To do this, you will need to inform the Office of the Public Guardian by submitting a revocation form and relevant supporting documents. At the same time, you will also need to give notice to your donee(s) and financial institutions.
Additionally, your LPA may be cancelled, or your donee’s appointment will be terminated in the following situations:
your donee dies;
your donee lacks the required mental capacity to act as your donee;
your donee formally declines an appointment to act as your donee;
if your donee is your spouse, and you and your donee divorce;
you or your donee becomes a bankrupt;
if your donee is a licensed trust company, and the company is liquidated, wound up,
or dissolved or comes under judicial management;
the Court issues an order to cancel the LPA or your donee's authority – this can
happen if your donee has not acted in your best interests.
If you lose your mental capacity, but you did not make an LPA first, it is still possible for another person – such as a friend or family member – to apply to Court to be appointed as your ‘deputy’ and make decisions on your behalf.
What is a deputy?
When a mentally incapacitated person has not made a Lasting Power of Attorney (LPA) and so has no donee, the Court may appoint a deputy to make decisions on that person’s behalf.
A deputy can be an individual or a licensed trust company under the Trust Companies Act. The powers of the deputy are defined by the court order which appointed him or her and must be exercised in the best interests of the mentally incapacitated person.
The main situation in which a deputy is required is when a person becomes mentally incapacitated but has not made a Lasting Power of Attorney.
However, there are several other situations in which you may need to apply to the Court to become a deputy for a relative or loved one.
For example, parents of a child with intellectual disabilities may apply to the Court to be appointed as deputies for their child. These parents can also nominate another person as successor deputy to ensure that the children’s welfare is protected in case the parents themselves lose capacity or pass away.
Another example is when a parent suffers from an injury or illness which would be very costly to treat, yet his or her bank accounts cannot be accessed because of the parent’s state of health. In this situation, the person’s child would be able to apply to the Court so that he or she could be appointed as the parent’s deputy and have access to the parent’s bank account to cover the required medical expenses.
Anyone can act as a deputy, provided that he or she satisfies the requirements of the Mental Capacity Act. This means that you must be at least 21 years of age and must consent to acting as a deputy for the mentally incapacitated person.
Typically, close family members or friends of the mentally incapacitated person are appointed as deputies.
However, it is also possible for professionals to be appointed as decision-makers for those who lose mental capacity. The Court can also appoint more than one deputy with either equally shared joint responsibility or split responsibility across different areas.
In appointing a deputy, the Court has to consider if an appointment of a deputy is preferable to a decision of the court in solving the problem at hand. The court must also keep in mind that the deputy’s powers have to be limited in scope and duration in a manner that is reasonably practicable in the situation.
In determining whether a person should act as deputy for another, the Court will take into account the following factors:
– The relationship between the person applying to be a deputy and the mentally incapacitated person;
– The suitability of the person applying to be a deputy;
– The kind of decisions that the deputy would have to make;
– The probability that further decisions would be required in future.
If you are applying to the Court to become a deputy, it is highly recommended that you seek assistance from a lawyer. Because a deputy can only be appointed by the Court, the expertise of a lawyer is invaluable in in making your case for appointment as a deputy.
Yes. The Mental Capacity Act allows the Courts to revoke a deputy’s powers if there is a significant risk that the deputy will abuse or exploit his or her position.
What we can do to help
Peace of Mind for You and Your Loved Ones
Whether you are planning for unforeseen eventualities in your future or are applying to the Court to become a deputy for a loved one a loved one, you want the security and peace of mind that comes from knowledge that your interests, or those of your loved ones, are protected.
However, as many as one in five applications for lasting powers of attorney are rejected in Singapore each year due to incomplete information. A lawyer can help you at every stage of your application to ensure that it complies with all legal requirements.
We understand that your application needs to be managed with sensitivity and personalised care and attention. Our team is ready to assist you and has experience with clients from all backgrounds and walks of life.
Safeguard Your Interests
An application under the Mental Capacity Act can also have a significant effect on other areas of law, including wills and inheritance and power of attorney. Allegations that a person was not mentally capable when he or she made her will or signed a Lasting Power of Attorney can completely invalidate the legal document if proven successfully.
This, in turn, could easily lead to a lengthy legal battle over who has the rights over the incapacitated person and his or her property. Such conflicts can be costly, time-consuming, and harmful to family relationships.
At I.R.B. Law, we have one of Singapore’s largest and most experienced teams specialising in applications under the Mental Capacity Act in Singapore. We will ensure that all legal formalities are fully complied with to minimise the risk that disputes will break out in future. If you do find yourself embroiled in a legal dispute, you will have the full advantage of our legal knowledge and expertise to defend your case.
I.R.B. Law is recognised as a team of leading Singapore contract lawyers with a track record of trustworthiness and reliability in contract matters. Our lawyers have over a century of a combined experience as solicitors and are ready to assist you with your contract matter.
We firmly believe that everyone should be entitled to a legal advice and guidance. Should you be in a position where you may need our assistance, please do not hesitate to contact us.