What is the Mental Capacity Act?
In an article published by the Singapore Medical Association in 2016, it was revealed that one in ten people who are 60 years old and above in Singapore suffers from dementia.
This reinforce the critical role of the Mental Capacity Act in Singapore in safeguarding individuals who lack mental capacity.
The Mental Capacity Act was passed by the Parliament in 2008 and it came into effect in 2010. The Act allows an individual to appoint a trusted person to make a decision on his or her behalf in case they lose their mental capacity in future.
What are the main principles of the Mental Capacity Act?
According to section 3 of the Mental Capacity Act, there are 5 main principles to protect a person who is mentally incapacitated under the Mental Capacity Act Singapore framework:
- A person must be assumed to have capacity unless it is established that he lacks capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
- An act is done, or a decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
How to assess a person’s mental capacity?
Under section 4 of the Mental Capacity Act, a person is mentally incapacitated when he is unable to make a decision due to an impairment of, or a disturbance in the functioning of, the mind or brain. It is immaterial as to whether the impairment or disturbance is permanent or temporary. An individual shall not be regarded as mentally incapacitated due to his age or appearance; or a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his mental capacity.
According to section 5(1) of the Mental Capacity Act, an individual is considered as unable to make a decision if he is incapable to do all or any one of the matters as follows:
- to understand the information relevant to the decision;
- to retain that information;
- to use or weigh that information as part of the process of making the decision; or
- to communicate his decision (whether by talking, using sign language or any other means).
Options for dealing with those who have lost their mental capacity
Individuals can appoint another person to act on his behalf by getting a Lasting Power of Attorney (LPA). Under the LPA, an individual (“donor”) appoints another person (“donee”) to make a decision on behalf of the donor, as governed by the Mental Capacity Act Singapore. The appointed donee is then authorised to make a decision on the donor’s estate, personal healthcare and welfare.
The Act specifies who is eligible to become a donee, the circumstances that the donee is allowed to make decisions and how to approach on the decision making for the donor who lacks mental capacity.
In addition, the Mental Capacity Act also enables parents of mentally incapacitated children to apply to the court and appoint a trusted person as deputy to make decisions on behalf of their children after they passed away. This is often referred to as Deputyship.
There is a Code of Practice where the appointed persons such as family members and caretakers shall refer to in order to carry out their responsibilities in a proper manner under the Mental Capacity Act.
Furthermore, there is an office of the Public Guardian to improve the protection to those who are mentally incapacitated, regardless as to whether they have appointed a person to act on their behalf. The Public Guardian serves to maintain a register of LPAs, to handle complaints concerning the exercising of power by the appointed person (“donee”) or the deputy appointed by the court and to supervise the deputy appointed by the court, as mandated by the Mental Capacity Act.
Please get in touch if you have any further questions regarding mental incapacity act, deputyship or lasting powers of attorney.
FAQs
What is the Mental Capacity Act in Singapore?
The Mental Capacity Act was passed in 2008 and came into effect in 2010. It allows an individual to appoint a trusted person to make decisions on their behalf if they lose mental capacity in the future, and provides a framework to protect people who lack mental capacity.
What are the five main principles of the Mental Capacity Act in Singapore?
The five principles are: (1) assume a person has capacity unless proven otherwise; (2) not treat a person as incapable without taking all practicable steps to help; (3) not treat an unwise decision as incapacity; (4) all acts must be in the person’s best interests; (5) consider less restrictive alternatives before acting.
How is mental capacity assessed under the Mental Capacity Act?
Under Section 4, a person lacks capacity when unable to make a decision due to an impairment of the mind or brain, whether permanent or temporary. Under Section 5(1), a person is considered unable to decide if they cannot understand, retain, use or weigh information, or communicate their decision.
What is a Lasting Power of Attorney (LPA) under the Mental Capacity Act?
An LPA allows a donor to appoint a donee to make decisions on their behalf if they lose mental capacity. The donee is authorised to make decisions on the donor’s estate, personal healthcare, and welfare, in accordance with the Mental Capacity Act Singapore framework.
What is Deputyship under the Mental Capacity Act in Singapore?
The Mental Capacity Act allows parents of mentally incapacitated children to apply to court to appoint a trusted person as deputy to make decisions on behalf of their child after the parents pass away. This is known as Deputyship and is governed by the Mental Capacity Act.
Who is the Public Guardian and what role do they play under the Mental Capacity Act?
The Public Guardian protects mentally incapacitated persons by maintaining a register of LPAs, handling complaints about the exercise of power by donees or court-appointed deputies, and supervising deputies appointed by the court, as mandated under the Mental Capacity Act.
Can a person be considered mentally incapacitated based on age or appearance alone?
No. Under the Mental Capacity Act, a person must not be regarded as mentally incapacitated solely due to their age or appearance, or any condition or behaviour that might lead others to make unjustified assumptions. Capacity must be assessed based on the specific decision to be made.
