Experienced Lawyers Handling Deputyship: In the Case of Mental Incapacitation

 

Introduction

Losing mental capacity can present significant challenges, particularly when it is due to sudden and unforeseen circumstances. In Singapore, the concept of deputyship provides a legal framework for managing the affairs of individuals who have lost mental capacity and have not made a Lasting Power of Attorney (LPA).

This comprehensive guide will delve into the specifics of deputyship under Singapore law, including the criteria for mental incapacity, the role of a deputy, the process of appointment, and the supervisory role of the Office of the Public Guardian (OPG).

 

Understanding Mental Incapacity:

Mental incapacity refers to the inability of a person to make decisions and understand the consequences of those decisions. In Singapore, mental capacity is assessed based on the Mental Capacity Act (MCA) enacted in 2008. According to the MCA, a person is deemed to lack mental capacity if they are unable to:

Understand information relevant to decision making: This involves comprehending provided information and appreciating its significance in the decision-making process.

Retain that information: The individual should have the ability to remember and recall the information over a reasonable period of time.

Use or weigh that information as part of the decision-making process: The person should be able to consider the information and its implications when making a decision.

Communicate their decision: Whether through spoken language, sign language, or any other means, the individual should be able to express their decision clearly.

 

Appointment of a Deputy:

When an individual lacks mental capacity and has not made an LPA, the court appoints a deputy to act on their behalf. The deputy is granted the authority to make decisions related to the individual’s medical needs, personal welfare, and financial affairs.

Criteria for Appointment:

To be eligible as a deputy, certain criteria must be met under Singapore law:

Age Requirement: The deputy must be at least 21 years old.

Financial Stability: The deputy should not be bankrupt.

Mental Competence: The deputy must be of sound mind.

In addition to these criteria, the court considers the suitability of the deputy in relation to the specific circumstances of the case. Factors such as the relationship between the deputy and the individual, the deputy’s ability to carry out the required responsibilities, and any potential conflicts of interest are taken into account during the appointment process.

 

Types of Deputies:

In Singapore, there are two types of deputies who can be appointed:

Lay Deputy: A lay deputy is usually a family member or a close friend of the mentally incapacitated individual. The lay deputy may have a personal connection with the individual and better understand their needs and preferences. However, it is essential for lay deputies to understand their legal obligations and responsibilities when acting on behalf of the individual.

Professional Deputy: In some cases, a professional deputy, such as a lawyer, may be appointed. This is especially relevant when there are complex financial matters involved or if there is a need for impartial decision-making. Professional deputies have the necessary expertise and experience to effectively manage the individual’s affairs.

 

Process of Appointment:

The process of appointing a deputy involves several steps and is overseen by the court. Here is an overview of the process:

  1. Application: An application must be made to the Mental Capacity Court to request the appointment of a deputy. The application should include relevant information about the individual who lacks mental capacity, the proposed deputy, and the reasons for the appointment.
  2. Supporting Documents: Along with the application, supporting documents such as medical reports, assessments of mental capacity, and any other relevant evidence should be submitted to the court.
  3. Notice to Interested Parties: The court requires that notice of the application be given to certain interested parties, such as family members and close relatives. This allows them the opportunity to provide their views on the proposed appointment.
  4. Court Hearing: The court will review the application and supporting documents and may conduct a hearing to assess the suitability of the proposed deputy. The court’s decision will be based on what is considered to be in the best interests of the individual.

 

Supervision by the Office of the Public Guardian (OPG):

The OPG plays a crucial role in overseeing the actions of deputies and safeguarding the welfare/rights of individuals who lack mental capacity. The OPG ensures that deputies comply with their legal obligations and make decisions in the best interests of the individual.

The OPG’s supervisory role includes:

Supervision Orders: The court may issue supervision orders to specify the extent and nature of the OPG’s supervision over the deputy. This includes periodic reporting requirements and review processes.

Financial Management: The OPG closely monitors financial matters to prevent any misuse or mishandling of funds. Deputies are required to keep accurate records and submit financial reports to the OPG regularly.

Professional Support: The OPG provides guidance and support to deputies to ensure they are equipped to carry out their responsibilities effectively. This may include training programs and access to resources.

 

Laws Relevant to Deputyship in Singapore:

Deputyship in Singapore operates under the Mental Capacity Act (MCA) and related legislation. These laws establish the framework for appointing deputies and protecting mentally incapacitated individuals. Recent amendments have enhanced the rights and welfare of individuals under deputyship. Key laws and recent amendments include:

Mental Capacity Act (MCA):

The MCA is the primary legislation governing deputyship. It outlines the criteria for mental incapacity, the eligibility requirements for deputies, and the powers/duties of deputies.

In 2020, amendments strengthened safeguards and support for individuals lacking mental capacity. They enhanced oversight by the Office of the Public Guardian (OPG) and increased penalties for offenses related to abuse or neglect.

Mental Capacity Regulations:

These regulations provide procedural rules for deputyship matters, including the application process, assessment of mental capacity, and the role of the OPG.

The regulations are periodically updated to align with changes to the MCA and streamline administrative processes.

Code of Practice for the Mental Capacity Act:

The Code of Practice offers guidance on implementation of the MCA. It covers assessing mental capacity, making decisions in the individual’s best interests, and fulfilling the duties of deputies.

The Code of Practice is regularly reviewed and updated to reflect changes in legislation and best practices.

Court Proceedings under the Mental Capacity Act:

These proceedings outline the procedures for applications related to deputyship, such as appointing or replacing deputies and reviewing orders.

 

Case Analysis: WLR and another v WLT and another and other matters [2023] SGHCF 24

In the case of WLT and another, the court addressed a dispute between siblings T and J regarding the appointment of a deputy for their mother, P, who suffered from Alzheimer’s disease. The main issues were whether J should be appointed as a deputy alongside Ms. Low Siew Ling, a professional deputy, and whether Ms. Kwok-Chern Yew Tee, a lawyer, should be appointed as a successor deputy. T opposed both alternatives and sought the appointment of Mr. Lau Chin Huat, a professional deputy and accountant. The court also considered the revocation of P’s Lasting Power of Attorney (LPA), which was executed in 2019.

L, P’s husband, had passed away at the age of 92 in February 2021, while P was 84 and incapable of managing her affairs due to her illness. The court noted that the exact timing of P’s incapacity was not relevant to the deputyship applications but was relevant to the LPA revocation issue.

L and P had accumulated wealth through property investments, jointly owning 17 pieces of real estate along with other assets and bank accounts. The value of their business was estimated to be in the millions of dollars. One of their children, G, was not involved in the litigation, while W, a pastor, was only interested in looking after P’s personal welfare. T and J, however, were directly vying for control over L and P’s assets.

Various assets were held by L and P individually, jointly, and under different company structures. The exact value of the assets was not in dispute, but their value was relevant because the appointed deputy would have decision-making powers over them. L’s will, which had not yet been proved, may also be subject to future litigation.

Several applications were filed by the children regarding P’s property and affairs, including the appointment of deputies and the revocation of P’s LPA. The court was tasked with determining who should be appointed as the deputy for P’s property affairs and what ancillary orders were appropriate in this case.

The court also considered the events leading up to the dispute between J and T. J alleged that T’s actions had caused a rift between L and herself, while T claimed that J had acted mercenarily towards their parents. There were allegations of undisclosed financial information, harassment, and the use of recording devices. These events had strained the relationship between J and L.

T opposed W’s application to be a deputy, arguing that it was motivated by self-interest. T pointed to prayer 5(b)(2)(v) of W’s application, which sought reimbursement of legal advice expenses incurred by W personally. T argued that there was no explanation for why W had sought legal advice on P’s property and affairs and claimed that the expense was only incurred because W had declined to be P’s donee, but the judge considered this point irrelevant.

T also claimed that W had not acted in the best interests of P. T argued that W rarely brought P to the nursing home when L was alive and never brought P for any medical appointments. T further claimed that W had been involved in multiple large group gatherings during the height of the Covid-19 pandemic, posing a health risk to P.

J objected to W’s application, stating that W was impulsive and lacked the experience and tenacity required of a deputy. J pointed out that W had declined P’s offer to make him a donee under her previous LPA and argued that W was not competent to manage P’s assets due to his limited experience working in Christian and non-profit organizations.

In response, W said he had valid reasons to decline his appointment as a donee. He argued that the LPA had contained amendments that had rendered it defective and that an email from the OPG had caused him unease. W also claimed that the tension that had arisen after L’s passing had made him concerned that any action taken would be opposed and challenged, citing T’s challenge to P’s LPA as proof.

The judge acknowledged the distrust between J and T and stated that while J had been looking after P’s well-being, it was important to maintain a balance and safeguard P’s financial interests. The judge appointed J and W as joint deputies for P’s personal welfare and property affairs, granting them general powers under the Mental Capacity Act. The judge dismissed T’s application for Mr. Lau Chin Huat to be appointed as a deputy.

 

Frequently Asked Questions:

What is deputyship?

Deputyship is a legal arrangement where a deputy is appointed by the court to manage the affairs of an individual who lacks mental capacity.

How is mental capacity determined in Singapore?

Mental capacity in Singapore is assessed based on the individual’s ability to understand, retain, use, and communicate information relevant to decision making, as outlined in the Mental Capacity Act.

What is a Lasting Power of Attorney (LPA)?

An LPA is a legal document that allows an individual to appoint a person of their choice, known as an donee, to make decisions on their behalf should they lose mental capacity in the future.

When is deputyship necessary?

Deputyship is necessary when an individual loses mental capacity and has not made an LPA.

Who can be appointed as a deputy in Singapore?

A deputy can be a trusted person, such as a family member or a friend, who meets the eligibility criteria set by the court, such as a minimum age of 21 years old, financial stability, and mental competence.

Can a professional be appointed as a deputy?

Yes, a professional, such as a lawyer, can be appointed as a deputy, particularly when there are complex financial matters involved or a need for impartial decision-making.

How is a deputy appointed in Singapore?

To appoint a deputy, an application must be made to the Mental Capacity Court, accompanied by supporting documents. A hearing may also be conducted to assess the suitability of the proposed deputy.

Can there be more than one deputy for an individual?

Yes, multiple deputies can be appointed, either jointly to make decisions together or severally to make decisions individually.

What are the responsibilities of a deputy?

A deputy is responsible for managing the medical needs, personal welfare, and financial affairs of the individual who lacks mental capacity, always acting in their best interests.

Are there any limitations on the decisions a deputy can make?

A deputy must make decisions within the scope of their authority and in compliance with the law. They should also consider the individual’s known past and present wishes, values, and beliefs.

How does the Office of the Public Guardian (OPG) supervise deputies?

The OPG supervises deputies by issuing supervision orders, monitoring financial matters, providing professional support, and ensuring compliance with legal obligations.

Can a deputy make decisions about medical treatment?

Yes, a deputy can make decisions about medical treatment on behalf of the individual, considering their best interests and consulting medical professionals.

Can a deputy sell or manage the individual’s property?

Yes, a deputy may be authorized to sell or manage the individual’s property, subject to the court’s approval and in accordance with the best interests of the individual.

How long does a deputyship last?

Deputyship can be ongoing until the individual’s mental capacity is restored or until they pass away. The court may review the appointment periodically.

Can a deputy be removed or replaced?

Yes, the court has the power to remove or replace a deputy if it is in the best interests of the individual or if the deputy is found to be unsuitable or in breach of their duties.

Can a deputy be held financially liable for their decisions?

A deputy can be held financially liable for any loss caused by their negligence or misconduct in the management of the individual’s affairs.

Can a deputy make a Will on behalf of the individual?

No, a deputy cannot make a Will on behalf of the individual. However, they can seek the court’s approval to amend an existing Will if it is in the individual’s best interests.

Can a deputy make gifts or donations on behalf of the individual?

A deputy can make gifts or donations on behalf of the individual, but this must be in accordance with the individual’s past and present wishes, values, and beliefs, and must not contravene any court order.

Can a deputy be paid for their services?

Yes, a deputy may be entitled to claim reasonable expenses and a professional deputy may be entitled to remuneration, subject to court approval.

How can I obtain legal assistance for deputyship matters in Singapore?

It is advisable to consult laywers with expertise in deputyship matters, such as our team at I.R.B Law, who can guide you through the process, provide legal advice, and ensure compliance with Singapore law.

 

Glossary:

Deputyship: The appointment of an individual or professional entity by the court to make decisions on behalf of a person who lacks mental capacity. It involves managing the person’s property, affairs, or personal welfare

Mental Capacity Act (MCA): The primary legislation in Singapore that governs issues related to mental capacity, including the appointment of deputies. It sets out the legal framework for decision-making on behalf of individuals who lack capacity.

Lasting Power of Attorney (LPA): A legal document executed by an individual (donor) to appoint a person (donee) to make decisions on their behalf should they lose mental capacity.

Court of Protection: A specialized court in Singapore that handles matters related to mental capacity and deputyship. It has the authority to appoint deputies and make decisions in the best interests of individuals who lack capacity.

Deputy: An individual or professional entity appointed by the court to act on behalf of a person lacking mental capacity. Deputies have legal authority to make decisions in the best interests of the person they represent.

Property and Affairs Deputy: A type of deputy appointed specifically to manage the financial and property matters of an individual lacking mental capacity. They have the authority to make financial decisions and manage assets on behalf of the person.

Personal Welfare Deputy: A type of deputy appointed specifically to make decisions related to the personal welfare, healthcare, and living arrangements of an individual lacking mental capacity. They have the authority to make decisions about medical treatments, accommodation, and care.

High Court: The highest court in Singapore with jurisdiction over matters such as deputyship. It has the power to hear and decide on applications for the appointment of deputies and other related issues.

Donee: An individual appointed by the donor under an LPA to make decisions on their behalf should they lose mental capacity. The donee’s authority comes into effect upon the donor’s loss of capacity.

Office of the Public Guardian (OPG): A government agency in Singapore responsible for supervising and supporting deputies, donees, and individuals involved in matters related to mental capacity. The OPG provides guidance, safeguards the interests of individuals lacking capacity, and maintains a register of LPAs and deputies.

Mental Capacity Assessment: A process conducted to determine an individual’s mental capacity to make specific decisions. It involves assessing their ability to understand, retain, and weigh information relevant to the decision at hand.

Best Interests: The guiding principle in decision-making for individuals lacking mental capacity. Decisions made by deputies or donees must be in the best interests of the person they represent, taking into account their wishes, beliefs, values, and any known preferences.

Revocation: The act of canceling or nullifying the legal effect of a document or appointment. In the context of deputyship, revocation may involve the cancellation of an LPA or the removal of a deputy’s authority.

Mental Capacity Regulations: Regulations made under the Mental Capacity Act that provide further guidance on the implementation and administration of the Act. They cover various procedural and administrative matters relating to deputyship and mental capacity assessments.

Court Order: A formal legal document issued by the court that outlines its decision on a particular matter. Regarding deputyship, a court order may grant the appointment of a deputy, specify their powers and responsibilities, or address any disputes or issues that arise.

Incapacity: The condition in which an individual lacks the mental capacity to make specific decisions. Incapacity may be temporary or permanent and can result from various causes.

Professional Deputy: A deputy who is a professional entity, such as a lawyer or an accountant, with expertise in managing the property and financial affairs of individuals lacking capacity. Professional deputies are often appointed when there are complex financial matters involved.

Accountant in Bankruptcy (AIB): A statutory office in Singapore responsible for administering the bankruptcy estate of individuals declared bankrupt. In the context of deputyship, the AIB may be involved in managing the financial affairs of incapacitated individuals who are also bankrupt.

Mental Health Tribunal: A tribunal established under the Mental Health (Care and Treatment) Act in Singapore. While not directly related to deputyship, the Mental Health Tribunal has jurisdiction over certain matters involving the detention and treatment of individuals with mental disorders.

Inherent Jurisdiction: The inherent power of the court to make decisions and provide remedies in situations not covered by specific legislation. In the context of deputyship, the court’s inherent jurisdiction may be invoked to address unique or exceptional circumstances not explicitly addressed by the Mental Capacity Act.

 

Conclusion:

Deputyship is an essential legal framework in Singapore that allows for the management of affairs for individuals who have lost mental capacity. Understanding the criteria for mental incapacity, the appointment process, and the supervisory role of the OPG is crucial when navigating the complexities of deputyship.

Our lawyers at I.R.B Law have extensive expertise in this area of law and can guide you through the process of appointing a deputy or provide legal advice on any related matters. If you find yourself in a situation where a deputy needs to be appointed or require further information, we recommend scheduling an initial consultation with our experienced team. Contact us today to book your initial consultation and gain peace of mind knowing that your loved one’s affairs are in capable hands. Our dedicated team is here to support you and provide the legal expertise needed to navigate the complexities of deputyship in Singapore.

 

Author: Mohamed Baiross/IRB LAW LLP

 

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