How to Appoint a Deputy for Mentally Incapacitated Persons in Singapore
Having to see your loved one lacking the mental capacity (referred to as “P” in this article) to go through everyday life is certainly not easy. Perhaps you feel that the least you may do is to appoint a deputy for him/her.
A deputy is someone who has the authority to make important decisions on behalf of P, in relation to his personal welfare and/or property and affairs.
Appointing a deputy may seem daunting and complicated at first glance given the numerous paperwork and steps involved. This article will bring you through the process of appointing a deputy to eliminate some of the hurdles you may expect.
The Mental Capacity Act (MCA) and Family Justice Courts Practice Directions (Practice Directions) serve as and provide useful guidance on appointing a deputy.
An Overview of the Process
Stage 1: Applying to Court
Do you qualify for the simplified filing track?
From 3 Oct 2019, applications for deputyship court orders involving a use of monies of up to $60,000 or a matter listed in Annex A of this Family Justice Courts’ Quick Reference Guide qualify for the simplified filing track.
Under this track, applications can be filed online through the Family Justice Courts’ Integrated Family Application Management System (iFAMS) using SingPass.
There are two types of deputyship orders that can be applied for, depending on the situation:
- Limited short-term urgent orders
- Long-term orders
The application fee is $40 and is payable by credit card or eNets.
If your application doesn’t qualify for simplified filing, you will have to use the regular filing track:
Regular filing track for deputyship court orders
The following forms, which can be found in Appendix A of the Family Justice Courts Practice Directions, are required to be filed at the Crimsonlogic Service Bureaus. The application may cost between $150 to $200.
1. Originating Summons – Form 217
An originating summons is an application used to commence proceedings. This form will need to include:
- A declaration that P lacks the capacity to make decisions for himself/herself
- Who the proposed deputy (or deputies) are
- What powers the proposed deputy (or deputies) are seeking
You will need to state what the declaration sought in respect of P’s lack of capacity concerns. Specifically, whether P’s lack of capacity to make decisions relates to:
- P’s personal welfare, e.g.
- Decisions on where P is to live
- Health care arrangements for P (medical and dental treatment); and/or
- P’s property and affairs, e.g.
- Sale, acquisition of property
- Carrying on of P’s profession, trade or business
- Execution of will
- Discharge of P’s debts
Note that the above list is not exhaustive.
It is also possible to seek the appointments of more than one deputy. In such a case, ensure that you indicate in Form 217 whether the proposed deputies are to act jointly and severally.
2. Supporting Affidavit – Form 218
The supporting affidavit, or Form 218, must be filed alongside the originating summons.
This form requires you to provide reasons and supporting documents to justify the deputy powers sought in the originating summons, be it relating to P’s personal welfare and/or property and affairs (see above).
The following supporting documents are required to be exhibited in the supporting affidavit in this order:
- Documents that prove the applicant’s relationship to P – Birth Certificate, Marriage Certificate, Adoption Order etc.;
- Documents relating to P’s assets – bank statements, insurance documents etc.;
- Office of the Public Guardian search result showing if P has registered a Lasting Power of Attorney;
- Office of the Public Guardian search result showing if there is a past Mental Capacity Act or Mental Disorders And Treatment Act Order in respect of P, to ensure that there is no past application made under the Act/Order;
- Wills Registry search result showing if P has registered a will; and
- A copy of P’s will (if P has made a will)
3. Doctor’s Affidavit & medical report – Form 224
The application must also include a doctor’s medical report. This report is to contain the doctor’s opinion on P’s mental capacity in relation to the matters specified in the application.
This medical report must be dated within 6 months before the date of your application to the court for the appointment of a deputy. This report should also be obtained from a specialist, which means that a general practitioner’s report is insufficient.
4. Affidavit by the successor deputy or deputies – Form 220
An applicant should consider proposing a successor deputy if he/she, as the deputy, is likely to predecease P, so that the successor deputy may take over.
If so, the affidavit of the proposed successor deputy (or deputies) will have to be filed as well.
5. Consent of relevant persons – Form 221
As the applicant, you are also required to serve the application and supporting documents on the “defendant” (if any) in the proceedings and also on any “relevant person(s)” (see below for the definitions of these terms).
Notice to the “relevant person(s)” (Form 222) should also be served on them. Form 221 is the form for these “relevant persons” to indicate their consent to the application (or just part of it).
Who is the “Defendant”?
A defendant is someone who objects to the application to appoint a deputy for P. As a defendant, you are required to submit your reasons for objection and attend the hearing of the case to make submissions. You may choose to engage a lawyer to do so on your behalf.
Who are “Relevant Persons”?
“Relevant persons” refers to persons who have an involvement in P’s life and/or who are likely to have an interest in the application.
Such persons may include:
- Immediate family members of P, such as his/her spouse, children (aged 21 and above), parents and siblings (aged 21 and above);
- Relatives or friends who have a close relationship with P;
- Organisation providing residential accommodation to P;
- Any person who has a legal duty to support P;
- Any person who will benefit from P’s estate;
- Any person who is responsible for P’s care.
It is possible that you, as the applicant, have no knowledge of such persons. You should then state this clearly in the supporting affidavit.
After preparing all the relevant and required documents above, you will need to file them with the Family Justice Courts.
Stage 2: Review of Your Case by the Court
Following the filing stage, the court will scrutinise and assess your case.
There are a few possibilities of what might happen. In some cases, the court may request further information or documents to be filed as Supplementary Affidavit. For instance, they may ask for an update from the doctors on P’s condition. In such cases, you can expect a longer deputy appointment process.
Ultimately, you will be notified of when to go to court for the hearing of your application.
Under the simplified filing track, the court can grant the deputyship order as quickly as within 3 weeks of the application date. Otherwise, the entire process of appointing a deputy may take about 4-6 months.
Stage 3: Granting of the Deputyship Court Order
At the hearing, assuming that the application is granted, an Order of Court in Form 32 will be granted and signed by the Registrar.
The legally recognised deputy will now be able to make decisions on behalf of your loved one. What powers will be granted in the Order of Court will depend on the powers sought by the applicant in the originating summons pertaining to P’s personal welfare and/or property and affairs (see above).
Power to Vary Court Orders
The court also has the power to vary court orders made on the appointment of a deputy. This may happen in the event P:
- Ceases to lack mental capacity; or
- Passes away
For deputyship proceedings which are still ongoing, where P ceases to lack mental capacity, an application (supported by evidence, such as a medical report stating that P no longer lacks mental capacity) to end proceedings may be made by either P, his litigation representative (a person who acts on behalf of P) or any party to the proceedings.
For deputyship proceedings which have concluded, an application to discharge any orders made by the court may be initiated by either P, his litigation representative or any party to the proceedings.
If P passes away, an application supported by P’s death certificate for final directions (e.g. applying for the court to discharge an order appointing a deputy) may be made.
Have further questions on how to go about appointing a deputy for your loved one lacking mental capacity? Feel free to contact one of our family lawyers for assistance.
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