Latest 2016 amendments to the Mental Capacity Act

The Mental Capacity Act was enacted in 2008, and provides a legal framework for a person to make decisions for another person, aged 21 years or older, who lacks the mental capacity to make decisions for himself. This can be effected through:

  1. A Lasting Power of Attorney (LPA), which allows a person (donor) to choose one or more persons (donees) to make decisions about his personal welfare or property and affairs on his behalf, when he loses mental capacity.
  2. Alternatively, the appointment of a deputy. A deputy can be appointed by the court to make certain decisions on behalf of the person who lacks mental capacity, where the person has not made an LPA. For this process, there is a higher cost due to the need to make a court application.

The latest changes to the Act in March 2016 have made it even more relevant to the Singapore public, given the ageing population and the rising number of singles. Here are the key changes to the Act that you should know about.

Professionals can be donees

First, the Act now enables professionals, such as lawyers or social workers, to make decisions on behalf of people who lose their mental capacity. Unlike before, the Act allows individuals and organisations completely unrelated to the person lacking mental capacity to be appointed as donees and deputies of that person. In line with this, people with family members now have the option of paying professionals who are non-family members to be their donees.

Courts have the power to suspend donee or deputy without application

Next, the Act now allows courts to step in earlier if the people appointed as decision-makers display a risk of abusing their powers. This is done by giving the courts the powers to suspend a donee’s or deputy’s powers even without any application being made to the court. In addition, applications to court to suspend the donee or deputy have been made easier: the amendments allow the donor, or Public Guardian or any other person to apply to court to suspend such powers, in contrast to the previous Act, which allowed a smaller class of people to do so.

Revocation of LPA where donee is “clearly unsuitable”

Lastly, the Act has revised the grounds upon which an LPA or deputyship can be removed. Currently, the courts have the power to revoke an LPA if fraud or undue pressure was used in the making of the LPA, or the donee has behaved, or even proposes to behave, in a manner contravening his authority, or which is not in the donor’s best interests. The amendments give the court additional grounds to revoke an LPA or deputyship order, where the donee or deputy is clearly unsuitable to continue acting as a donee or deputy, and there may be a real risk of his abuse of authority. This gives the court more discretion to decide what is “clearly unsuitable” as a donee or deputy, and presumably imposes on donees or deputies a higher standard of behaviour as they additionally have to ensure that they do not display unsuitable behaviour.

In addition to these legislative measures, the Ministry of Social and Family Development will also implement non-legislative measures, such as ensuring that the LPA-making process becomes stricter to prevent vulnerable seniors from facing undue influence or financial exploitation. It will also simplify the application process for be a deputy for certain classes of people, such as children born with severe intellectual disabilities.

As a whole, these amendments are extremely relevant to Singapore’s context of an ageing population, as well as an increasing number of singles and elderly who are childless or live alone. The amendments also tackle past instances where vulnerable senior citizens with considerable assets were financially exploited by their children or even mere acquaintances whom they trust (the case of Yang Yin’s exploitation of a wealthy widow comes to mind), as the Act now allows non-family members who are professionals to become their donees.