TEB v TEC

• Court: Family Court (Singapore)
• Judge: Colin Tan
• Judgment Date: 04 May 2015
• Neutral Citation: [2015] SGFC 54
• Citation: [2015] SGFC 54
• Hearing Date: 15 November 2013,14 November 2013,11 March 2014,29 August 2013,27 February 2014,26 February 2014,08 April 2014,25 February 2014,13 March 2014,08 May 2014,28 February 2014,12 March 2014,09 April 2014,23 January 2015,27 December 2013,20 May 2014
• Docket Number: Originating Summons No 9 of 2013
• Published date: 10 July 2015
• Plaintiff Counsel: Mr Wijaya and Mr Avery Chong (M/s Low Yeap Toh & Goon)
• Defendant Counsel: Mr Philip Fong and Ms Shazana (M/s Harry Elias Partnership LLP)
• Subject Matter: Mental Capacity Act,revocation of Lasting Power of Attorney

District Judge Colin Tan: Introduction

In late 2012, a Lasting Power of Attorney (“LPA”) was executed by one Mdm P (“P”).

This LPA appointed the Defendant, who was P’s nephew, as Donee and granted him various powers to manage her affairs for her.

The Plaintiff was the nephew of P’s late husband and he filed the current application to revoke the LPA.

This application was not the only litigated matter involving the parties. The parties have also been involved in litigation concerning P’s late husband’s estate, P’s medical treatment and other issues. However, those matters were litigated separately and did not form part of the current application.

After hearing the evidence and considering the submissions by both parties, I came to the view that the Plaintiff had failed to discharge the burden of proof that lay upon him, and I therefore dismissed his application.

The Plaintiff subsequently filed an appeal and I now set out herein the grounds of my decision.

Relevant background facts

P was an elderly widow with a history of stroke, Parkinson’s disease and other medical conditions. Her husband had passed away in May 2012.

P was looked after by two domestic helpers. From the evidence put forward in this case, it appeared that the two domestic helpers had taken sides in the conflict between the Plaintiff and the Defendant; one sided with the Plaintiff while the other sided with the Defendant.

The Defendant’s case was essentially as follows: that the Plaintiff (and the doctor engaged by the Plaintiff) had not taken good care of P (especially after the death of P’s late husband), thus causing P to end up in a “very poor” condition; as a result, he (i.e. the Defendant) had to intervene by getting another doctor to look after P; and P had decided to execute a LPA naming him as her Donee who would look after her affairs in the event that she lost mental capacity.

The Plaintiff’s case, on the other hand, was essentially as follows: that the Defendant had ulterior financial motives for his actions; that P did not have mental capacity to execute the LPA in question; and that the Defendant had, by engaging (and continuing to engage) this new doctor to care for P, acted in a manner that was not in P’s best interests.

In respect of P’s mental capacity to execute the LPA, the parties’ positions were as follows: the Plaintiff’s case was essentially that P had severe dementia and did not have the mental capacity to execute this document; the Defendant’s case was essentially that P was in a poor physical and mental condition due to poor, or even wrong, treatment by the Plaintiff’s doctor, and that once her condition had been treated by the Defendant’s doctor she had improved to the point where she had sufficient mental capacity to execute the LPA.

In respect of the Plaintiff’s allegation that the Defendant was behaving a manner that was not in P’s best interests, this largely arose from the Defendant engaging another doctor to treat P instead of relying on the Plaintiff’s doctor.

The dispute over choice of doctor was made worse by the fact that there was a major difference between the approaches of the Plaintiff’s doctor and the Defendant’s doctor.

The Defendant’s doctor’s mode of treatment was highly interventionist in nature while the Plaintiff’s doctor’s approach was much more passive.

Specifically, the Defendant’s doctor found that P was suffering from a number of medical conditions which had been left untreated, in particular renal impairment, low sodium levels and a urinary tract infection, and she proceeded to treat these conditions.

In contrast, the Plaintiff’s doctor’s view, which he had explained during cross-examination, was that he thought that these medical conditions did not require treatment.

Based on the expert evidence put forward, P’s condition appeared to have varied quite a bit over time and was as follows: P’s condition in the months prior to the LPA being executed was not in dispute. It appeared that, at this time, P’s condition was generally poor and P was rather unresponsive. P’s condition around the time that the LPA was executed was, on the other hand, bitterly disputed by the parties. The Plaintiff’s witnesses felt that P was unresponsive and unable to execute the LPA, while the Defendant’s witnesses felt that P was able to respond sufficiently, albeit within certain limits due to her medical conditions, and was able to execute the LPA. P’s condition a year after the execution of the LPA (i.e. during the time when this matter was heard) was, as set out in Dr Carol Tan’s report and as seen in the videos of P recorded by her, significantly better than the time when P was under the care of the Plaintiff’s doctor (he had described P’s condition as “conscious but unresponsive” in April 2012¹).

Apart from the large differences in P’s condition over the 1½ year period described above, it also appeared that P’s mental state could vary from day to day or even in the course of a day. Dr Carol Tan explained P’s fluctuating condition as follows:

“However, her ability to comprehend, obey instructions and give her opinion on various matters varies from day to day and even within a 24 hour cycle.”²

This could possibly have been why the different expert witnesses sometimes came to very different views about P’s condition. For example, Dr Sitoh and Dr Chew both examined P in late 2012 but came to very different views about P’s condition and mental capacity. Similarly, Dr Chan and Dr Ngui both examined P during the February / March 2013 period and both of them also came to very different views about P’s condition and mental capacity.

The fact that mental capacity can fluctuate was recognised by Parliament when the Mental Capacity Act was passed. During the Parliamentary debates, the Minister stated:

“I think it is worth highlighting that the legislation recognises that capacity can wax and wane. You may be capable of making a decision on this specific topic today, but you may not be tomorrow, or you may recover the day after. We recognise this and that is why we have ensured that the presumption is that the person has capacity until established otherwise.”³

The Plaintiff’s application

The Plaintiff’s application, as set out in his Originating Summons, was as follows: “1. The Plaintiff objects to the registration of an instrument purportedly made by P on 26th November 2012 with a view to create a Lasting Power of Attorney on the following grounds: a. that one of the requirements to create a Lasting Power of Attorney is not met in that P lacked capacity when she purported to execute the said instrument; and b. that the intended donee is behaving in a way that is not in the best interest of P. 2. The Plaintiff prays for the following order(s): a. That the Honourable Court revoke the said instrument. b. Further or alternatively, the Honourable Court direct that the instrument is not to be registered as a Lasting Power of Attorney. c. Costs. d. Any other relief that the Honourable Court deems fit.

As the LPA in question had been registered by the Office of the Public Guardian, there was no question of directing that it not be registered and the only issue was whether or not to order that it be revoked.

Based on the Plaintiff’s Originating Summons, the Plaintiff was seeking an order revoking the LPA on the basis that P lacked capacity at the time of its execution and that the Defendant was behaving “in a way that is not in the best interest of P.”

The Plaintiff also stated in his supporting affidavit that:

“The grounds of my objection are as follows:

a. that P lacked capacity when she purported to execute an instrument with a view to creating a Lasting Power of Attorney; and b. DF is behaving in a way that is not in P’s best interest.” Relevant statutory provisions

The provisions of the Mental Capacity Act that were relevant to this application were sections 11(2)(c), 17(2)(a), 17(3)(b) and 17(4) and paragraph 17(a) and (c) of the First Schedule.

Section 11(2)(c) of the Mental Capacity Act states: “(2) A lasting power of attorney is not created unless — (c) at the time when P executes the instrument, P has attained the age of 21 years and has capacity to execute it.”

Section 17(2)(a) of the Mental Capacity Act states: “(2) The court may determine any question relating to — (a) whether one or more of the requirements for the creation of a lasting power of attorney have been met;”

Section 17(3)(b) of the Mental Capacity Act states: “(3) Subsection (4) applies if the court is satisfied — (b) that the donee (or, if more than one, any of them) of a lasting power of attorney — (i) has behaved, or is behaving, in a way that contravenes his authority or is not in P’s best interests; or (ii) proposes to behave in a way that would contravene his authority or would not be in P’s best interests.”

Based on the Plaintiff’s Originating Summons, the Plaintiff had chosen to limit his claim to alleging that the Defendant was behaving in a way that was not in P’s best interests. Therefore was therefore no issue about the Defendant’s future behaviour or the scope of the Defendant’s authority.

Section 17(4) of the Mental Capacity Act states: “(4) The court may — (a) direct that an instrument purporting to create the lasting power of attorney is not to be registered; or (b) if P lacks capacity to do so, revoke the instrument or the lasting power of attorney.”

Based on the above, in the event that a Donee acts in a manner that is not in the best interests of P, the court can only revoke the LPA if P lacks capacity to do so. If P has capacity to revoke the LPA , then regardless of the extent of the Donee’s wrongdoing it remains P’s right to decide whether or not to revoke the LPA.

As such, it follows that a Plaintiff who wishes to apply to...