Potential Scenarios
What if a person sinks into a coma or becomes mentally impaired such that he is unable to make important decisions about his property and welfare. For example, money has to be withdrawn from his bank account to pay for medical expenses?
What if an elderly person has severe dementia and suddenly makes a substantial gift of money or property, or changes his will in a way, which is incongruous with his character?
What if a child is intellectually challenged and unable to make his own decisions about his property and welfare? In some instances, banks or other third party institutions may require the parent or guardian to provide documentary proof that he or she is legally authorised to make decisions on behalf of the child regarding those matters.
This is where the Mental Capacity Act comes in.
Applications to the court to make decisions or to appoint a deputy under MCA
In the event that a person (“P”) lacks mental capacity in relation to any matter concerning his:
(a) personal welfare: e.g. where P is to live, what contact P is to have with any specified person, how P is to be medically treated, who is to provide health care to P (s 20, MCA); and/or
(b) property and affairs: e.g. control and management of P’s property, sale, exchange or disposition of P’s property, acquisition of property on behalf of P or in P’s name, carrying out any contract entered into by P, discharge P’s debts and/or obligations, conduct legal proceedings in P’s name or on P’s behalf (s 23, MCA);
an application to the Court can be made under s 20(1)-(2) of the Mental Capacity Act (Cap. 177A) (“MCA”) to:
(i) make the decision for P; or
(ii) appoint a deputy for P who can make decisions on his behalf.
Parents of children with intellectual disability may also apply to Court to appoint themselves as a deputy for their children and another person as a successor deputy to plan for the event that the parents themselves lose capacity or pass away: s 21, MCA.
Applications may also be made to the court to exercise powers under s 20 of the MCA to decide on certain matters substantively concerning P’s affairs. For instance, applications have been made to the court to execute a statutory will under s 23(1)(i) of the MCA.[1]
Principles governing MCA powers
The Court’s exercise of powers under s 20 of the MCA are subject to certain principles set out in s 3 and 6 of the MCA. The general principles (set out in s 3) are:
(a) A person must be assumed to have capacity unless it is established that he lacks capacity.
(b) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
(c) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(d) An act done, or a decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
(e) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
Under s 4 of the MCA, “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”. The impairment or disturbance could be permanent or temporary.
Meaning of ‘Lacking Mental Capacity’
A person lacks mental capacity if he or she cannot do one or more of the following things (s 5, MCA):
(a) Understand the information relevant to that decision;
(b) Retain that information;
(c) Use or weigh that information as part of the decision-making process; and
(d) Communicate that decision by any means, e.g., talking, using sign language, etc.
Instances where a person may lose mental capacity include dementia, stroke and coma.
The underlying philosophy of the MCA emphasises an individual’s autonomy and the right to decide for himself. For example, the MCA provides that decisions cannot be taken on behalf of another person unless it is established that he lacks statutorily-defined capacity in relation to the specific matter. As a corollary, if a person possessed statutorily-defined capacity, his decision should stand as it is an autonomous one, assuming that other vitiating factors are absent. Given that the MCA was enacted to guide proxy decision-making and not to alter the pre-existing conception of autonomy embodied in the common law, its concept of capacity was not different from the common law’s.[2]
The test for capacity in s 4(1) of the MCA may be thought of as having:
(1) a functional component: that P must be unable to make a decision; and
(2) a clinical component: P’s inability must be caused by a mental impairment.[3]
The courts will require the assistance of expert evidence when addressing the clinical component of the test: the courts would need medical professionals to tell whether P has a mental impairment based on the observable symptoms and any other diagnostic tools available, and if so, what that impairment is, and what effect it has on P’s cognitive abilities.[4]
But as to the functional component, it is a question for the court to grapple with leaving perhaps a limited scope for the involvement of the medical experts. The courts are able to form their own assessment from the evidence, including a cross-examination of P and the clinical interviews, as to the degree to which her mental functioning is compromised; that competence derives essentially from the knowledge and experience that we as rational human beings have of the process of thinking and reasoning. It does not require the specialised expertise of a medical professional to see whether P has, for instance, poor memory or difficulty in understanding sophisticated concepts. It is ultimately the court which must decide whether P lacks the ability to make decisions within the meaning of s 5(1) of the MCA, that is, whether P is unable to understand, retain, use or weigh information relevant to the decisions that must be made, or unable to communicate his decision.[5]
These two components were adopted from the equivalent United Kingdom legislation. The requirement for a functional inability directs our attention to the person’s decision-making process rather than the outcome of his decision. This focus is reinforced by s 3(4) of the MCA which states that a person is not to be considered incapacitated merely because he makes an unwise decision. Because a purely functional approach may still overreach, the Law Commission of England and Wales recommended an additional diagnostic threshold to be satisfied in order for incapacity to be established: Mental Incapacity (1995) (Law Com No 231) London: HMSO at pp 34 to 36. This threshold serves to prevent individuals from being caught by the MCA’s provisions simply for making unwise or eccentric decisions.[6]
Because s 25(1) provides that a “deputy does not have power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter”, there may be situations where a deputy would have the burden of proving on a balance of probabilities that P lacked capacity at the material time. See also s 3(2) of the MCA which provides that a person “must be assumed to have capacity unless it is established that he lacks capacity”. Thus, in a case where substantial and corroborated evidence shows that P possessed sufficient functional dexterity to e.g. discharge his professional duties, socialise with 3rd parties, etc., it was found that P cannot be said to have lacked capacity.[7]
A medical assessment may be made of a person to obtain medical certification that P lacked mental capacity. Paragraph 4.8.4 of the Code of Practice: Mental Capacity Act 2008 (“the Code”) issued by the Office of the Public Guardian, which applied by virtue of s 41(6) of the MCA, states that, to avoid any conflict of interest the doctor who conducts the mental assessment capacity of a person “should not be related to … the individual seeking the formal assessment of the person”.
Appointment, powers and duties of deputy under MCA
A deputy appointed by the court must be (s 24, MCA):
(a) an individual who has attained the age of 21 years; or
(b) as respects powers in relation to property and affairs, either such an individual, or a person specified to be eligible to be a deputy for this purpose, e.g. licensed trust company (Regulation 5 of the Mental Capacity Regulations 2010).
A person may not be appointed as a deputy without his consent (s 24(3)). More than 1 donee may be appointed under an LPA. They may be appointed jointly, or jointly and severally, or jointly on some matters and jointly and severally on some other matters (s 24(4)). The court may also appoint 1 or more persons as successor deputy, i.e. to succeed the original deputy where certain events occur, e.g. the original deputy’s death or loss of mental capacity (s 24(5)). Where P is a minor, the court shall have regard to the wishes of the parents or guardian of P on the choice of the successor deputy (s 24(6)).
A deputy is to be treated as P’s agent (in the legal sense) in relation to anything done or decided by him within the scope of his appointment and in accordance with Part V of the MCA (s 24(7)). The deputy is entitled (s 24(8)):
(a) to be reimbursed out of P’s property for his reasonable expenses in discharging his functions; and
(b) if the court so directs when appointing him, to remuneration out of P’s property for discharging them.
The court may confer on a deputy powers to (s 24(9)):
(a) take possession or control of all or any specified part of P’s property;
(b) exercise all or any specified powers in respect of it, including such powers of investment as the court may determine.
The court may require a deputy (s 24(10)):
(a) to give to the Public Guardian such security as the court thinks fit for the due discharge of his functions; and
(b) to submit to the Public Guardian such reports at such times or at such intervals as the court may direct.
The MCA imposes a statutory duty on the deputy to act in the best interests of the mentally incapacitated person (s 3(5)). Deputies are also bound by the Code by virtue of s 41(5), MCA. Paragraph 9.8.9 of the Code stated that deputies must act in good faith, with honesty and integrity; and para 9.8.7 stated that deputies are under a fiduciary duty not to take advantage of their position to benefit themselves and should not allow considerations other than the best interests of the person to influence the way that they carry out their duties.[8]
A deputy is restricted under s 25-26 of the MCA from exercising certain powers or doing certain acts. For example:
(a) prohibit a named person from having contact with P;
(b) direct a person responsible for P’s health care to allow a different person to take over that responsibility;
(c) disposition of P’s property by making gifts;
(d) making, on P’s behalf, of any nomination under section 49L(2) or 49M(2) of the Insurance Act (Cap. 142). Where any nomination under section 49L(2) or 49M(2) of the Insurance Act has been made by P or by the court on P’s behalf, revoking, on P’s behalf, of that nomination under section 49L(7) or 49M(4), as the case may be, of that Act;
(f) execution for P of a will;
(g) executing under section 15(6A) or 25(1) of the Central Provident Fund Act (Cap. 36), on P’s behalf, of any memorandum under section 25(1) of that Act. Where any such memorandum has been executed, or any nomination has been made under section 25(1) of that Act, by P or by the court on P’s behalf, revoking, on P’s behalf, of that memorandum or nomination, as the case may be; or
(h) carrying out or continuation of: (i) life-sustaining treatment on P, whether or not amounting to extraordinary life-sustaining treatment within the meaning of section 2 of the Advance Medical Directive Act (Cap. 4A); or (ii) any other treatment on P which a person providing health care reasonably believes is necessary to prevent a serious deterioration in P’s condition;
(i) make a decision on behalf of P which is inconsistent with a decision made, within the scope of his authority and in accordance with the MCA, by the donee of a lasting power of attorney granted by P (or, if there is more than one donee, by any of them);
(j) A deputy may not do an act that is intended to restrain P (i.e. uses, or threatens to use, force to secure the doing of an act which P resists; or restricts P’s liberty of movement, whether or not P resists, or if he authorises another person to do any of those things) unless 4 conditions are satisfied:
(1) in doing the act, the deputy is acting within the scope of an authority expressly conferred on him by the court.
(2) P lacks, or the deputy reasonably believes that P lacks, capacity in relation to the matter in question.
(3) the deputy reasonably believes that it is necessary to do the act in order to prevent harm to P.
(4) the act is a proportionate response to —
(a) the likelihood of P’s suffering harm; or
(b) the seriousness of that harm;
(k) consenting to marriage;
(l) consenting to touching of a sexual nature;
(m) consenting to a decree of divorce being granted on the basis of 3 years’ separation;
(n) consenting to the making of an adoption order under the Adoption of Children Act (Cap. 4);
(n) adopting or renouncing a religion;
(o) receiving treatment for change of gender;
(p) consenting or revoking consent to treatment for sexual sterilization within the meaning of the Voluntary Sterilization Act (Cap. 347);
(q) consenting or revoking consent to treatment to terminate pregnancy;
(r) registering or withdrawing an objection under section 9 of the Human Organ Transplant Act (Cap. 131A) in respect of removal of an organ from the person upon his death;
(s) making or revoking an advance medical directive under section 3 or 7 of the Advance Medical Directive Act (Cap. 4A).
Offence for ill-treatment
Under s 42 of the MCA, any caregiver, donee or deputy who ill treats and/or willful neglects P (who is 16 years old and above), or causes, procures or knowingly permits P to be ill treated or wilfully neglected by any other person, shall be guilty of an offence and will be liable to imprisonment, fine or both.
Ill-treatment of an incapacitated person includes the following acts:
- subjecting P to physical or sexual abuse;
- wilfully or unreasonably does, or causes P to do, any act which endangers or is likely to endanger the safety of P or which causes or is likely to cause P: unnecessary physical pain, suffering or injury; emotional injury; injury to health and/or development;
- wilfully or unreasonably abandons or exposes P with full intention of abandoning P or in circumstances that are likely to endanger the safety of P or to cause P: unnecessary physical pain, suffering or injury; emotional injury; injury to health and/or development;
- wilfully or unreasonably neglects to provide adequate food, clothing, medical aid, lodging, care or other necessities of life for P.
Deputyship application proceedings
Rule 172(2) of the Family Justice Rules 2014 (“FJR“) provides that a plaintiff or applicant must apply for permission to commence proceedings under the Act, unless he falls within an exception set out in s 38(1) of the MCA or Rule 172(3) of the FJR. This includes:
1. the application is made by any person related by blood or marriage to P;
2. the application is for interim orders or directions under s 36 of the MCA;
3. the application is made to object to the registration of a lasting power of attorney, by a person named in that lasting power of attorney under paragraph 2(1)(c)(i) of the First Schedule to the MCA;
4. the application is made by a person who lacks, or is alleged to lack, capacity and, if such a person has not attained the age of 21 years, by anyone with parental rights with respect to him;
5. the application is made by the donor or a donee of a lasting power of attorney to which the application relates;
6. the application is made by a deputy appointed by the court for a person to whom the application relates;
7. the application is made by a person named in an existing order of the court, if the application relates to the order;
8. the application is made by the Public Guardian.
Rule 179 of the FJR requires an application to become a deputy of a mentally incapacitated person to be served on all named defendants and “relevant persons” (see Paragraphs 49-50, Family Justice Courts Practice Directions (“PD“)). “Relevant persons” are persons who have an involvement in P’s life and/or who are likely to have an interest in the application. Often, P’s immediate family members, by virtue of their relationship to P, are likely to have an interest in being notified that an application has been made to the Court concerning P (Paragraph 50, PD). They include P’s spouse, children (aged 21 and above), parents or guardians, siblings (aged 21 and above), as well as close friends or relatives.
Rule 179 allows the “relevant persons” to intervene in the application if they so wish. They may, e.g. object to the applicant’s application. The court, having all the relevant and necessary information before it, would then be able to appoint the most suitable person(s) to be the deputy to act on behalf of the mentally incapacitated person. That deputy will be granted various express powers that the court deems necessary as will be in P’s best interests. The potential for abuse of position is thus kept, as far as is possible, within acceptable limits.[9]
Applications under the MCA can become very contentious, adversarial, long-drawn and costly. The Court of Appeal has posited the guideline that cases involving questions of mental capacity under the MCA should be better dealt with in a more inquisitorial and less adversarial mode, with the court directing the inquiry, assisted by an assessor if need be. The court may direct parties on the evidence, especially expert evidence, that it requires in order to reach its decision. Also, in any inquiry into a person’s mental capacity, she should be independently examined in consultation with her own doctor rather than have her capacity assessed under cross-examination, and the court ought to appoint the independent expert should parties be unable to agree on the appointment of the expert.[10]
In MCA proceedings, so long as P is made a party to proceedings under the MCA, he shall have a litigation representative for those proceedings (O 99 r 8(1) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed)). Where a deputy has been appointed for P, the deputy will ordinarily act as P’s litigation representative (r 8(3)), but that is not permitted if the deputy is himself a party to the proceedings in his own capacity (r 8(4)). If this preclusion applies to the deputy, it then falls on the court to appoint as litigation representative a person whom the court is satisfied is competent and willing to conduct proceedings on P’s behalf, and who has no interests adverse to those of P: r 8(5)(a). But this requirement of appointing a litigation representative for P admits of an exception stipulated in r 8(2). This exception applies where the court is of the opinion that P does not lack capacity to conduct the proceedings himself.[11] It should also be noted that the Singapore MCA was based substantially on the UK Mental Capacity Act 2005 (c 9) (“the UK MCA”), so English cases are helpful in providing guidance.[12]
Where there was an interaction between mental impairment and allegations of undue influence in proceedings under the MCA in which a person’s mental capacity was in issue, the court had to have regard to the actual circumstances in which that person lived, and ought not to adopt a theoretical analysis that overlooked those circumstances. In so far as the words “because of” in s 4(1) of the MCA required that there be shown a causative nexus between a person’s mental impairment and her inability to make decisions, there was no additional requirement that her mental impairment be the sole cause of the inability to make decisions. The required causative nexus would be established even where the person’s inability to make decisions was caused by both her mental impairment and actual circumstances.[13] Capacity under the MCA is a highly context-dependent enquiry. It is “decision-specific” and must take into account P’s actual circumstances. If P is unable to retain, understand or use information relevant to a decision because of a combination of mental impairment and the circumstances he finds himself in, the statutory test for incapacity will be met, and it is no answer then to say that P’s mental impairment would not necessarily rob him of decision-making ability in a different set of circumstances.[14]
The next-of-kin of a mentally incapacitated employee do not have, without more, the requisite capacity to make a claim under the Work Injury Compensation Act on behalf of an employee. Only a person duly appointed by the court under the Mental Capacity Act will have the legal capacity to do so.[15]
Reporting to the Public Guardian about persons lacking capacity in need of care
Any person who knows or has reason to suspect that a person who lacks capacity is in need of care or protection may make a notification to the Public Guardian of the facts and circumstances on which his knowledge or suspicion is based (s 43(1), MCA). Persons who make such reports will be protected by a whistleblower provision (s 43(4), MCA): their identity will not be compellable to be disclosed in court proceedings.
Also, healthcare workers who make such a report will be protected from any liability for breaching any code of professional etiquette or ethics or conduct, and if the healthcare worker acted in good faith, he shall incur no civil or criminal liability in respect of the notification or the provision of any information contained in the notification (s 43(2), MCA).
Statutory Will
As mentioned above, a deputy does not have the power under the MCA to make a will on behalf of P. Only the Court has the power to do so, or appoint an authorised person to do so, pursuant to s 20, 23(1)(i), MCA and Second Schedule to the MCA. Paragraph 57 of the PD sets out the procedure in respect of applications for statutory will. Such an application should be supported by an affidavit which should include the following information and evidence (Paragraph 57(2), PD):
(a) a copy of the draft will;
(b) a copy of the existing will or codicil (if any);
(c) any consents to act by proposed executors;
(d) details of P’s family, preferably in the form of a family tree, including details of the full name and date of birth of each person included in the family tree;
(e) a schedule showing details of all of P’s assets and properties, with up to date valuations;
(f) an up to date report of P’s medical condition, life expectancy, likelihood of requiring increased expenses in the foreseeable future, and testamentary capacity; and
(g) an explanation as to why it is necessary or desirable for the Court to execute the will on behalf of P.
The Court in such applications may order for a statutory will to be made on behalf of P such as to revoke a previous will which may have been made when P was lacking mental capacity (and potentially under undue influence): TCZ v TDA, TDB and TDC [2015] SGFC 63; BHR and Another v BHS [2013] SGDC 149.
Some principles in the Court’s determination of whether to order the making of a statutory will are as follows.
While P’s best interests would be served by giving effect to P’s wishes, best interests do not cease at the moment of death. What will live on after P’s death is his memory and for many people, it is in their best interests that they be remembered with affection by their family and as having done the right thing by their will. In some cases, it can be the “right thing” in a protected person’s best interest to order the execution of a statutory will, rather than leave him to be remembered for having bequeathed a contentious probate to his relatives and beneficiaries named in a disputed will: BHR and Another v BHS [2013] SGDC 149 at [56].
The statute lays down no hierarchy as between the various factors which have to be borne in mind, beyond the overarching principle that what is determinative is the judicial evaluation of what is in P’s “best interests”: In re M (Statutory Will) [2009] EWHC 2525 (Fam) (BHR and Another v BHS [2013] SGDC 149 at [58]).
The weight to be attached to the various factors will, inevitably, differ depending on the individual circumstances of the particular case. A feature or factor, which in one case may carry great, possibly even preponderant weight may in another, superficially similar, case carry much less, or even very little weight: In re M (Statutory Will) [2009] EWHC 2525 (Fam) (BHR and Another v BHS [2013] SGDC 149 at [58]).
There may, in the particular case, be one or more features or factors which are of “magnectic importance” in influencing or determining the outcome: In re M (Statutory Will) [2009] EWHC 2525 (Fam) (BHR and Another v BHS [2013] SGDC 149 at [58]).
Best Interests do not cease at the moment of death. P’s best interests may be served by giving effect to his wishes. Yet, that is part of the overall picture, and an important one at that. But what will live on after P’s death is his memory; and for many people it is in their best interests that they be remembered with affection by their family and as having done the right thing by their will. In my judgment, the decision maker is entitled to take into account, in assessing what is in P’s best interest, how he will be remembered after his death: In re M (Statutory Will) [2009] EWHC 2525 (Fam) (BHR and Another v BHS [2013] SGDC 149 at [58]).
The court is required to consider, so far as is reasonably ascertainable,
(a) the protected past and present wishes and feelings (and in particular, any relevant written statement made by him when he had capacity),
(b) the beliefs and values that would be likely to influence his decision if he had capacity and
(c) the other factors that he would be likely to consider if he were able to do so.
The court must also take into account, if it is practicable and appropriate to consult them, the views of (amongst others) anyone engaged in caring for the person or interested in his welfare, and any deputy appointed for the person by the court, as to what would be in the person’s best interests: In re D (Statutory Will) [2010} EWHC 2159 Ch (BHR and Another v BHS [2013] SGDC 149 at [61]).
If you need a Singapore lawyer to advise you on the Mental Capacity Act, applying for deputyship or writing a will, feel free to contact me.
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[1] TCZ v TDA, TDB and TDC [2015] SGFC 63; BHR and Another v BHS [2013] SGDC 149.
[2] Wong Meng Cheong and another v Ling Ai Wah and another [2012] 1 SLR 549 (HC) at [27].
[3] Re BKR [2015] 4 SLR 81 (CA) at [134].
[4] Re BKR [2015] 4 SLR 81 (CA) at [134].
[5] Re BKR [2015] 4 SLR 81 (CA) at [134].
[6] Wong Meng Cheong and another v Ling Ai Wah and another [2012] 1 SLR 549 (HC) at [29].
[7] Wong Meng Cheong and another v Ling Ai Wah and another [2012] 1 SLR 549 (HC) at [54].
[8] Wong Meng Cheong and another v Ling Ai Wah and another [2012] 1 SLR 549 (HC) at [106].
[9] Tan Lip Tiong Rodney (deputy for Tan Yun Yeow) v Commissioner of Labour and another matter [2015] 3 SLR 604 (HC) at [39].
[10] Re BKR [2015] 4 SLR 81 (CA) at [211] to [216].
[11] Re BKR [2015] 4 SLR 81 (CA) at [81]-[82].
[12] Re BKR [2015] 4 SLR 81 (CA) at [88].
[13] Re BKR [2015] 4 SLR 81 (CA) at [88] to [120].
[14] Re BKR [2015] 4 SLR 81 (CA) at [127].
[15] Tan Lip Tiong Rodney (deputy for Tan Yun Yeow) v Commissioner of Labour and another matter [2015] 3 SLR 604 (HC) at [40].