Date01 December 2020
Citation(2020) 32 SAcLJ 167
Published date01 December 2020
AuthorAllen SNG Kiat Peng1 LLB (Hons) (National University of Singapore); Advocate and Solicitor (Singapore); Teaching Assistant, Faculty of Law, National University of Singapore. TAN Kah Wai LLB (Hons) (National University of Singapore), LLM (International Business Law) (King's College London).

Mental incapacity is a pressing public issue in Singapore. It is thus surprising that there has been very little academic literature on the laws of mental capacity here. This article seeks to partially remedy this gap by examining the deputyship legal regime under the Mental Capacity Act (Cap 177A, 2010 Rev Ed). Apart from providing a map for those who wish to be acquainted with the deputyship regime, this article will examine the practical issues that litigants-in-person have faced under this legislative regime and consider some solutions to help them overcome such challenges.

I. Introduction

1 Let us start with some statistics. In 2011, there were 28,000 individuals suffering from dementia in Singapore. This number is estimated to rise to 80,000 by 2030.2 If one takes into account the other groups of persons who may lack mental capacity, such as those who are born with intellectual disabilities3 and accident victims,4 the absolute number is likely to be even higher. Mental incapacity is therefore a

pressing public issue in Singapore and will continue to be so in the near future.

2 Yet, there is a dearth in the local literature on the law relating to mental incapacity. Apart from a single book written in 1994,5 there have been no attempts to elucidate the law on mental incapacity. It is curious why so little academic attention has been given to this area of the law, given that the number of individuals to be stricken with illness and lose mental capacity is likely to only increase in the future.

3 Indeed, it is impossible to map the entire world of laws relating to mental incapacity within the breadth of one article.6 A more practical approach must be taken. This article focuses on the deputyship regime in Singapore, in the hope that it provides a convenient map for the uninitiated legal professional who may be asked to file a deputyship application on behalf of his or her client. Such a map would also be useful for any law student or academic to be acquainted with the deputyship regime, and be a basis for any further critique and improvement to the existing law.7 Part II8 of the article outlines the background in which the deputyship regime operates in Singapore. In Part III9 of this article, the law on deputyship and the application procedures will be summarised succinctly, keeping in mind recent local developments. References will be provided to direct the reader to where more information may be sought. Part IV10 of this article will discuss the practical challenges that applicants under the current regime face, and some proposals for reforming the deputyship regime.

II. The landscape
A. Types of decisions

4 Every person in his or her life must make decisions. These decisions may range from the mundane (what to eat for lunch) to the downright complex (such as whether to undergo a particularly risky form of medical treatment). To borrow the terminology of the Mental

Capacity Act11 (“MCA”), one may conveniently categorise12 the myriad of a person's decisions into two groups: “personal welfare” decisions and “property and affairs” decisions. Personal welfare decisions refer to lifestyle decisions such as:13

(a) deciding where one wishes to live;

(b) deciding what contact one wishes to have with others; and

(c) giving or refusing consent to any medical treatment.

5 Property and affairs decisions, as the name implies, refer to decisions relating to one's financial affairs and property. These include:14

(a) controlling one's property;

(b) acquiring property;

(c) entering or carrying out of any contract; and

(d) conducting legal proceedings.

6 The common law protects mentally incapacitated persons (“P”) by securing their legal positions, preventing them from being bound by the decisions they make while they are incapacitated. For example, if P can be shown to lack mental capacity at the point of executing a will, the will is void.15 However, this protection is a double-edged sword. As much as it protects P's legal position, it poses problems when there is a need to make decisions regarding P or to alter the legal rights and obligations of P.16

B. Incapacity and types of proxy decision-making

7 The general protection of P may have to be set aside in situations where there is a need to act on P's behalf and to alter P's rights. The law does so by allowing several proxy decision-makers to make decisions on P's behalf.

(1) Proxy decision-making under MCA

8 The MCA is the prevailing legislation governing the conferment of authority on a third party to manage the matters of a mentally incapacitated person.17 Under the MCA, these proxy decision-makers generally may make both personal welfare, and property and affairs decisions. There are four types of proxy decision-makers under the MCA, discussed in the order of their scope of powers.

(a) Court

9 Under the MCA, the court has the broadest powers in respect to proxy decision-making. Subject to certain excluded decisions, the court is granted wide powers to make decisions on matters regarding P's personal welfare or property and affairs.18 These include the power to execute wills for P, the power to make nominations under the Insurance Act,19 as well as to execute memorandums or nominations under the Central Provident Fund Act.20 The court, however, cannot act suo motu. It can only exercise its powers under the MCA where an application has been commenced under the MCA and the applicable rules.21

(b) Donee of a lasting power of attorney

10 Prior to the MCA's enactment, it was impossible for a person to choose who would be his or her proxy decision-maker, in the event that said person loses his or her mental capacity. The MCA introduced a new regime known as the lasting powers of attorney (“LPA”).22 Under this regime, a person may choose someone whom that person “could trust and rely on and … who was willing to undertake that burden”23 to

be a donee of an LPA. A person could provide in the LPA what powers the donee would have.24 The donee of an LPA has much more limited powers than the courts. For instance, he or she is not entitled to execute wills for P.25 The donee of the LPA is able to exercise his or her decisionmaking powers automatically when P loses mental capacity, and there is no requirement to notify the Office of the Public Guardian (“OPG”) regarding P's loss of capacity.26
(c) Deputy

11 In cases where the decisions required to be made on behalf of P are of an ongoing nature, or relate to decisions which are to be made in the future, the court may choose to delegate its decision-making powers to a deputy. The court is empowered to do so under s 20(2)(b) of the MCA.27 The scope of delegated powers depends on the terms of the court order. It is also subject to the various statutory restrictions imposed by the MCA. The deputy has much more limited powers as compared to an LPA. A deputy, unlike an LPA donee, cannot prohibit a named person from having contact with P, or to make gifts out of P's assets.28 A court application is required for a person to be appointed as a deputy.

(d) Caregivers and medical treatment providers acting under section 7 of MCA

12 Caregivers and medical treatment providers undertake various actions in looking after the day-to-day care of P, without P's consent. These actions include basic caregiving such as feeding, changing clothes or providing necessary medical treatment such as surgery. Under common

law, these caregivers and treatment providers would be protected from claims of battery (on P), under the doctrine of necessity.29

13 Nevertheless, the common law position on these informal decision-making situations was described to be “far from clear”.30 As such, s 7 of the MCA was drafted with the purpose of “clarifying in statute the circumstances in which decisions can be taken for people who lack capacity, but without anyone having to apply for formal authorisation”. Hence, this section provides for a more certain ground to protect these caregivers and medical treatment providers.31 Section 7 of the MCA protects a person from any civil or criminal liability if:32

(a) that person does an act in connection with P's care or treatment;33

(b) that person takes reasonable steps to establish if P lacks capacity in relation to the matter in question; and

(c) when doing the act, that person reasonably believes P lacks capacity in relation to the matter, and that it will be in P's best interest for the act to be done.

14 The caregiver or medical treatment provider may be reimbursed out of P's assets, if he or she had borne expenditure for P for necessary goods or services.34 However, the statutory protection does not extend to criminal or civil liability arising from that person's negligence in doing the act.35 The combination of immunity from liability and a right of reimbursement in effect amounts to a statutory “authorisation” of these acts of care and treatment.

(2) Alternative forms of proxy-decision making – Trusts

15 Trusts may provide an alternative mechanism for indirectly managing P's property and affairs. For example, a parent of a mentally incapacitated child may wish to make financial arrangements for the child's care after the parent passes on. He or she could settle a trust and direct the trustee to apply the trust property for P's best interests.36 However, services of a professional trustee are costly, and most professional trustees only cater to persons with assets of more than $2m.37

16 In Singapore, the non-profit Special Needs Trust Company (“SNTC”) provides an affordable professional trustee service for these parents. The parents can settle a trust with SNTC, along with a letter of intent and a care plan which describes how the money is to be disbursed. As the letter of intent is non-binding, SNTC has the discretion to depart from the letter if it is in P's best interests (such as medical emergency situations).38 SNTC provides caregivers with a low-risk...

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