VHI v VHJ

• Jurisdiction: Singapore
• Judge: Shobha G. Nair
• Judgment Date: 09 April 2020
• Neutral Citation: [2020] SGFC 37
• Court: District Court (Singapore)
• Hearing Date: 27 December 2019,11 November 2019,25 November 2019,14 November 2019,13 November 2019,12 November 2019
• Docket Number: OSM 103/2019; Summons 2429/2019; Summons 949/2019
• Plaintiff Counsel: Ms Jacqueline Chua (Jacque Law LLC)
• Defendant Counsel: Mr Ling Tien Wah and Ms Janet Tan Chor Huang (Dentons Rodyk & Davidson LLP)
• Subject Matter: lasting power of attorney,removing a donee,conflicting medical opinion on mental capacity,validity of power of attorney and statutory declaration of patient with cognitive impairment,access to a patient
• Published date: 17 April 2020

District Judge Shobha G. Nair:

Parties to this dispute are sisters. Their father (P) has been in the business of providing a range of funeral services for well over 40 years and is the sole proprietor of ‘L’ Funeral Parlour (LFP) which rents out its funeral parlours to the families of deceased persons. The plaintiff by her own admission had not been involved in P’s business prior to this dispute and works in an unrelated capacity in another organisation. The defendant and her family lives in Hong Kong and had for a long time prior to this dispute, been helping her father out in the latter’s various business efforts¹ including the running of a business styled ‘M’ Funeral Services Pte Ltd (M) which provided a wide variety of funeral services. In 2006, P made the defendant a director of ‘M’.

P suffered a stroke in 2000. He recovered well and retained mental capacity to continue making decisions with respect to his personal welfare and property and affairs. This was not disputed. On 15 June 2017, a Lasting Power of Attorney was executed by P appointing his daughters as donees of power and they were to act jointly and severally in all decisions relating to the personal welfare and property and affairs of P should he lose his mental capacity to do so. The validity of the LPA was not disputed. Unfortunately, on 29 July 2017, P suffered a second stroke, this time leaving him with significant cognitive impairment. The defendant acknowledging that her father had no mental capacity to manage his property and affairs, sent to the plaintiff a draft deed on 24 August 2018 seeking that the latter agree to a transfer of 30% of the ownership of LFP to the defendant. The plaintiff, somewhat perplexed by the request, pointed to the duties of a donee of power under the LPA and declined the request. On 18 February 2019, the defendant brought P to a law office to sign a Power of Attorney (POA) and a Statutory Declaration (SD) enabling the transfer of his interests in LFP to the defendant, the conversion of LFP to a private limited company (LFPPL) and the appointment of the defendant as the director and sole shareholder of LFPPL. The plaintiff was not informed of this and was expectedly shocked to find out that LFPPL was incorporated by the defendant on 19 February 2019. The plaintiff proceeded to take out the current application and sought by way of an ex parte application, an injunction to stop, inter alia, the defendant from engaging in business under the name of LFPPL and using any monies from P’s bank accounts. An interim injunction was ordered on 21 March 2019.

In OSM 103/2019, the plaintiff essentially sought the removal of the defendant as a donee of power under the LPA and for the plaintiff to act solely with regards to all matters relating to the personal welfare and property and affairs of P pursuant to the LPA. In the course of the hearing, the defendant did suggest that she would be willing to work with the plaintiff jointly. This was declined by the plaintiff. The plaintiff also sought via summons 2429/2020, the conversion of LFPPL to a sole proprietorship and the return of the status of P as the sole proprietor of the business. The defendant contested the application vigorously. She was insistent on retaining the business as a private limited company and sought to provide evidence of the position that this was advantageous to the business. She was of the view that the execution of the POA and the SD were valid.

While both parties were largely in agreement that P did not have sufficient mental capacity to manage his personal welfare and property and affairs generally, the defendant took the position that medical opinion showed that P had the mental capacity to decide on the specific issue of who he had wanted to take charge of the running of his business. She claimed that the execution of the POA and the SD were documents which validly expressed P’s desire for the defendant to be at the forefront of the business and all decisions that needed to be made to advance the business interests of P.

Having heard the parties and their witnesses, all of whom were cross-examined given the apparent conflict in positions on key areas, including medical opinion, I issued the following orders: LFP shall be reinstated as a live entity and operated as a sole proprietorship. The parties shall take all steps necessary to enable this with immediate effect. The Power of Attorney and Statutory Declaration dated 18 February 2019 are deemed invalid and shall cease to be of legal effect. The LPA shall remain in force save as provided in this Order. In areas relating to the management of the business of P, the parties shall work together and each shall be at liberty to make decisions which are aimed at furthering the interests of the business provided the other is kept informed and written consent obtained. In the event parties are unable to reach agreement on any aspect of the management of the business, the plaintiff shall be entrusted with the decision. The Office of the Public Guardian is to investigate into monies withdrawn by the defendant in the course of assisting in the funeral business to meet personal expenses, including gifts of any kind. Any monies utilised for personal expenses or to provide gifts are to be fully refunded to P within a month of the OPG’s position being made known. A professional auditor shall be newly appointed by the parties and if they are unable to agree on the appointment, then by the plaintiff, to ensure that proper accounting practices are employed and observed in the running of the business during the lifetime of P from the time the business is restored as a sole proprietorship. The interim injunction shall be discharged once the business is reinstated as a sole proprietorship. All bank accounts into which monies due and payable to P, including rental income from residential properties shall be kept separate and distinct from accounts into which monies belonging to the plaintiff and the defendant are retained. Any withdrawals from accounts into which P’s money is placed shall be made for the sole purpose of meeting P and his wife’s expenses and such withdrawals shall only be made by the plaintiff. Quarterly reports shall be provided to the defendant. For the avoidance of doubt, the defendant shall be allowed to continue having access to her father when the former is in Singapore. For the avoidance of doubt, the spouses of the plaintiff and defendant shall not engage in any aspect of the management of the funeral business of P nor his property and affairs generally.

Save for order (a) above, the plaintiff is dissatisfied with the remaining orders and appeals against the same. I had issued written observations and findings before issuing the orders above and this is reproduced below for ease of reference:

“This case illustrates how laws set up to enable an adult child to care for an aged parent who has lost his autonomy to decide matters pertaining to his personal welfare and assets – are often interpreted in ways which are in truth, designed to preserve the wealth of a parent ---for the child---and ancillary to that, to ensure that the parent is generally cared for. In many cases, this being no exception, an application under the Mental Capacity Act is misunderstood and looked at in much the same vein as a succession or inheritance matter – whether consciously or otherwise. The child sees no concern arising from using one parent’s money to meet varied financial concerns unrelated to the care and welfare of the parent so long as the parent is also catered for. I use this opportunity to emphasise that the relevant laws are designed to protect the vulnerable patient. No one expects nor it is hoped, desires one’s parent to be unable to decide for himself where he should live or how his money should be spent. The need to preserve the assets of the parent, enhance its value where possible and to use it for his care is crucial. The situation with regards his autonomy, having changed on account of illness or injury, necessarily means that old ways of spending have to similarly change so that the patient is cared for. A donee of power needs to prioritise the interests of the person he cares for. It is not ancillary to other priorities.

Although there was much time spent on debating the state of P’s mental capacity – a lack of which necessitates an order of court and conversely, the presence of which does not require any orders, the doctors were largely consistent. P lacked/lacks the required mental capacity to make decisions relating to his personal welfare and property and affairs. The question centred on whether Dr ‘E’ and Dr ‘F’ were correct in their position that P had expressed that he wanted the defendant to manage the business. Dr ‘G’ called by the plaintiff, had opined that it would be difficult to draw that conclusion given that severe deficits were shown in his assessment of the capacity of P even if that question was not specifically posed by him to P.

None of the medical professionals stated that it was the intention of P to have his business entity altered or for it to be taken over by either of his children. The limited issue where there was divergence was who was to manage the business. What I found to be of concern was the amount of preparation by the defendant of P for the assessments. While I took note of Dr ‘E’’s statement that any preparation would not have played in the mind of P given that he would not have been able to retain it for too long, we do know from the transcripts that lengthy efforts at coaching P on what to say was seen as necessary by the defendant suggesting that this may well have continued to the time before P stepped into the doctor’s office. Even if this were an unsafe assumption to make, I find it difficult to appreciate the need for the defendant to repeat in a laborious and often times disturbing way, what her...