Mental Capacity and Deputyship under Mental Capacity Act in Singapore

General Overview

In order to address the rise in mental illnesses as the population ages, the Singaporean government passed the Mental Capacity Act in 2008. In 2010, the Act went into force. Any Singaporean over the age of 21 may now prepare for mental impairment by designating someone to act on their behalf if they ever lose their ability to think clearly. The Act also gives parents of intellectually disabled children the option of asking the court to designate a trustworthy individual as their children’s guardian in the event of their demise. In 2016, the Mental Capacity Act was amended to include provisions for qualified donees and deputies. People can now designate professionals to act on their behalf if they don’t have close friends or family members to do so. The Public Guardian Office’s operations were also enhanced by the revisions. The Mental Capacity Act’s practical application is outlined in a code of practice. Anyone designated to act on behalf of someone who lacks mental capacity is required to follow the law by checking the code when performing their obligations.

The Act established the Lasting Power of Attorney (LPA), which enables people to make arrangements in advance by designating a “donee” to make decisions on their behalf in the event that they lose their mental capacity.

Additionally, under the MCA, the Court may appoint “deputies” for persons who failed to obtain an LPA. Dementia, a stroke, an accident, or other illnesses and disorders can all lead to a loss of mental capacity. Age is not always a factor when it comes to mental deterioration. Some young people could also be mentally incompetent.

Lack of Mental Capacity

According to Section 4(1) of the MCA, “a person lacks capacity in relation to a matter if, at the material time, he is unable to decide for himself in relation to the matter due to an impairment of, or a disturbance in the functioning of, the mind or brain”. Thus, the Act stipulates that a person lacks capacity in respect to an issue if the person is unable to decide for themselves at the material time due to an impairment or disruption in the functioning of the mind or brain. It makes no difference whether the impairment or disruption is permanent or temporary.

When is an Individual Unable to Make Decisions?

A person is not capable of making decisions for themselves under section 5 if they are unable to:

• Comprehend information pertinent to the decision;
• Retain that information;
• Utilize or evaluate that information during the decision-making process; and
• Express the decision in any way listeners see appropriate.

The individual is not considered to be unable to grasp the information if they can comprehend an explanation of it when it is provided to them in an acceptable manner (simple language, visual aids, etc.). Similar to the previous instance, it is still possible to perceive someone as being competent to make decisions even if they can only retain important knowledge for a brief period of time.

The Core Principles of the MCA

The Act seeks to strike a balance between a man’s choice to make their own decisions and the necessity to protect them when they lack the mental capacity to do so. Section 3 of the Act establishes five fundamental principles to be followed when making decisions on behalf of someone who lacks mental capacity:

1) Unless it is established that the individual lacks capacity, there is a presumption that they do have capacity.
2) A person should not be considered incapable of making decisions unless every reasonable effort has been made to assist them without success.
3) A person shouldn’t be viewed as incapable of decision-making just because they make an unwise decision.
4) It is required that any action taken or decision made on behalf of a person who lacks capacity be in that person’s best interests.
5) Before taking any action or making any decisions, it is important to consider whether the desired outcome may be reached more effectively with less interference with the person’s rights and freedom of action.

What does “Best Interest” Include?

“Best interest” is not defined under the Act. Numerous variables, such as the person’s circumstances, age, health, and family position, will be taken into account. The procedures to be followed for making choices in the person’s best interest are outlined in section 6 of the Act. Best interests cannot be determined based only on a person’s age, appearance, health, or behavioral characteristics. With such a limited focus, people can erroneously presume what might be best for the individual.

The decision-maker must, among other things, take into account the likelihood that the individual may one day be able to make decisions on the subject matter at hand. If that’s the case, the decision must be postponed unless it’s an emergency. They must take into account the individual’s wants and feelings from the past and present, as well as any beliefs and values that would probably affect the choice if the person had the capacity if they can do so. All pertinent aspects must be taken into account and weighed; the list of factors is not all-inclusive. Anyone close to the individual who lacks capacity should be consulted as well by the decision-maker.

Lasting Power of Attorney

If a person chooses to plan for future mental incapacity, he or she might do so by creating a Lasting Power of Attorney (LPA). An LPA allows that individual (the donor) to designate another person, known as the “donee,” to act on their behalf and make decisions about their property and financial matters, as well as their personal welfare or health care.

An LPA is a legally binding document. The donor (the individual creating the LPA) must be at least 21 years old and have the mental capacity to create a valid LPA. The LPA will become effective only if and when the donor loses mental capacity. The donor may delegate broad authority to the donee or limit the extent of authority to specific decisions. A donee chosen to make decisions concerning the individual’s property and money cannot make decisions concerning the individual’s healthcare unless the individual has authorized the same donee to do both.

Who is a Donee?

A donee is someone the individual trusts who is competent to make choices and act on their behalf. A professional donee (an individual or organization) can also be compensated to serve as a donee. According to the Act, a donee must be:

• A person over the age of 21 who gives the services at no cost; or
• An individual who is a professional donee and is not connected to the person by blood or marriage; and
• If the powers relate to the person’s property and affairs, the donee may also be a professional donee who is not an individual.

Donees must perform their responsibilities with reasonable care and competence.

The Court’s Protection

In general, the court can declare whether or not a person has the mental capacity to make a specific decision on a particular subject. The court may issue declarations concerning whether acts or omissions undertaken in respect to a person who lacks capacity were lawful and in the best interests of the individual. If the individual does not form an LPA, the court may make specific judgments about the person’s property, financial affairs, or personal welfare. Any judgment made by the court must be in conformity with the section 3 principles and the best interests of the individual.

The court may determine that appointing a deputy to make decisions on existing or future concerns is in the person’s best interests. Section 20(4) of the Act directs the court to take the following into account when choosing a deputy:

• A decision by the court is preferred to the appointment of a deputy; and
• The deputy’s powers should be constrained in scope and duration to what is practically feasible under the circumstances.

Who is a Deputy?

A deputy is a person appointed by the court with particular powers to make decisions for the welfare and benefit of a person who lacks mental capacity and has not filed a Lasting Power of Attorney (LPA). The deputy must submit an annual report to the Office of Public Guardian detailing the decisions they made for the mentally incapacitated person and how they handled their finances in addition to taking care of their personal needs and financial matters.

A deputy must be:

• A person older than 21 years old who provides the services without remuneration; or
• An individual who is a professional deputy and is not related to the person by blood or marriage;
• If the powers relate to the person’s property and affairs, the deputy may also be a professional deputy who is not an individual; and
• The deputy can be a family member, friend, or trusted person, as long as the person is older than 21 years, of sound mind, and not bankrupt.
  The code of practice must serve as the standard for all newly appointed individuals. All LPAs and deputies are included in a register maintained by the Office of the Public Guardian. The Public Guardian will oversee any donees or deputies selected by the court and will address any complaints that are made against them. In the following circumstances, applying for a deputy is generally recommended:
• Children with intellectual disabilities who are young. The Mental Capacity Act enables parents of intellectually disabled children under the age of 21 to apply to the Family Court for the appointment of a deputy to make arrangements for their child’s future care in the event that they pass away.
• The deputy would be able to take care of the individual and handle their assets and bank accounts in their best interests if one has an adult family member who has lost their mental capacity as a result of a disease or accident.

The decision to seek a Deputy to be appointed under the Mental Capacity Act should be discussed with family members. Decisions should be made regarding who is to be the deputy and how many deputies are required. There should not be any family disagreements over the choice of the Deputy.

Decisions that are Prohibited on Behalf of Mentally Incapacitated Persons

A person who lacks mental capacity may not have some decisions made on their behalf, according to section 26.

These life decisions involve:

• Approving of marriage;
• Approving of explicit sexual contact;
• Approving a divorce after three years of separation;
• Obtaining a court order for adoption;
• Adopting or renunciation of a religion;
• Getting treatment for a gender transition;
• Permitting sexual sterilization;
• Approving the termination of a pregnancy;
• Approving the donation of organs;
• The creation of an advanced medical directive.

Decisions made by people who have mental capacity shall be respected by the law, according to the Mental Capacity Act. Those who lack the mental capacity to manage their affairs will also be protected by the government. These people are expressly shielded against exploitation and abuse by the law.

Application for Deputyship Court Orders

1) Simplified Filing Track

Applications for deputyship court orders involving the use of funds up to $60,000 (CPF) or $80,000 (Cash) or an issue stated in Annex A of the Family Justice Courts’ Quick Reference Guide are eligible for the simplified filing track as of 3 October 2019. Applications may be submitted online using SingPass through the Integrated Family Application Management System (iFAMS) of the Family Justice Courts under this track. Depending on the circumstance, one may apply for one of two deputyship orders:

• Limited short-term urgent orders; and
• Long-term orders

The $40 application fee can be paid using a credit card or an eNets account. If the application is not eligible for simplified filing, the regular filing track must be used.

2) Regular Filing Track

The following forms must be submitted to the Crimsonlogic Service Bureaus and they can be found in Appendix A of the Family Justice Courts Practice Directions. The price of the application may range from $150 to $200. The forms are:

a) Form 224 (Doctor’s Affidavit and Medical Report)

A medical report from a doctor is required for the application. The doctor’s assessment of the patient’s mental capacity in connection to the application’s specified subject matter is to be included in this report. This medical report must have a date that is no more than six months prior to the day on which the court is approached to appoint a deputy. A general practitioner’s report is not adequate for this and thus a specialist’s report is required.

b) Form 221 (Consent of Relevant Persons)

As the applicant, one must also serve the application and any supporting documentation on any “relevant person(s)” as well as the “defendant” (if there is one). Such persons should also receive notice of the “relevant person(s)” (Form 222). These “relevant persons” must sign Form 221 to confirm that they have read and agree to the application (or just part of it).

c) Form 220 (Affidavit by the Successor Deputy(s))

If the deputy is expected to not outlive the mentally incapacitated person, the applicant should think about suggesting a successor deputy so that the successor deputy can take over. If so, the recommended successor deputy’s (or deputies’) affidavit must be submitted as well.

d) Form 217 (Originating Summons)

The commencement of the action is done via an originating summons. These details must be on this form:

• A declaration that a person is incapable of making decisions for himself.
• Who the proposed deputy(s) is/are?
• What authority(s) the potential deputy(s) is/are seeking.

One must specify whatever is desired in the declaration concerning the person’s concerns about lack of capacity. The appointment of more than one deputy may also be sought. In such a situation, make sure to specify in Form 15 whether the proposed deputies will act jointly and severally.

e) Form 218 (Supporting Affidavit)

Form 218, the supporting affidavit, must be submitted with the originating summons. The application must include justifications and supporting documentation for the deputy powers requested in the originating summons, whether they pertain to the mentally incapacitated person’s personal welfare, property, or financial matters.

The court will review and evaluate the case after the filing phase. There are several scenarios that might occur. The court may occasionally ask for additional information or documentation to be submitted as a Supplementary Affidavit. For instance, they can request a medical update on the patient’s status. One may anticipate a drawn-out procedure for appointing a deputy in such circumstances. The applicant will eventually be informed of the day and time of the application hearing in court. The court may award the deputyship order quickly—within three weeks of the application date—if one uses the simplified filing track. Otherwise, it can take 4-6 months to complete the appointment procedure for a deputy

If the application is approved during the hearing, the Registrar will grant and sign an Order of Court in Form 32. Therefore, decisions will be made on behalf of the mentally incapacitated individual by the legally recognized deputy. The powers requested by the applicant in the original summons concerning the person’s personal welfare and/or property and affairs will determine what powers are given in the Order of Court.