Appointment of Deputies under the Mental Capacity Act

Last updated on September 24, 2018

When a relative or loved one loses mental capacity to make decisions for himself, someone else has to be appointed to make decisions for him. This is especially relevant where the relative or loved one has assets that can be used for his own welfare. The Mental Capacity Act is a statute addressing this need to make decisions for persons who are 21 years or older, when they lose mental capacity to make decisions for themselves.

What is a Deputy?

A deputy is person the court appoints to make certain decisions on behalf of a person who lacks mental capacity, when the person has not made a Lasting Power of Attorney (LPA), and therefore has no donee to make decisions on behalf.

Similar in function to a donee in an LPA, the deputy has to act in the best interests of the person he makes decisions on behalf of. However, the deputy’s powers are defined by the court order under which they are appointed, or any such further orders the court may make which can affect their powers of their appointment.

When is an Appointment of Deputy Needed?

Generally, the threshold requirement of an appointment of deputy is that there is no relevant LPA. There are subsequently a few possible situations where a deputy might be needed.

A deputy is desirable in situations involving parents of young children with intellectual disabilities, who are concerned about who will take care of their children should anything untoward happen to them. The Mental Capacity Act allows parents of children with intellectual disabilities who are below the age of 21 years old to apply to the court to appoint a deputy to ensure that their child’s future care is arranged if the parents pass away or lose their mental capacity.

Another example where a deputy is desirable would be where one’s parent suffers from a debilitating illness or is in a coma which will incur high expenses, yet their bank accounts are inaccessible given their state of health. A court order appointing a deputy could allow a deputy to access their bank account to cover such expenses.

Process of Appointing a Deputy

Who appoints the deputy?

The court plays the key role in appointing a deputy. The court may appoint a deputy for an adult person if the court deems that the person lacks capacity regarding matters involving his personal welfare or his property and affairs. The court may appoint a deputy for minors under the age of 21 years old, if the court considers it likely that the minor will still lack capacity to make decisions regarding his personal welfare or his property and affairs when he reaches the age of 21 years old.

In appointing a deputy, the court has to consider if an appointment of a deputy is preferable to a decision of the court in solving the problem at hand. The court must also keep in mind that the deputy’s powers have to be limited in scope and duration in a manner that is reasonably practicable in the situation.

What the court considers in appointing a deputy

The court will most likely consider these factors in determining whether they should appoint a deputy:

  1. The circumstances of the person concerned.
  2. The likelihood that future or ongoing decisions will be required.
  3. Whether the appointment is for decisions with respect to property & affairs or personal welfare matters.

The court will usually choose a family member or a close friend to be a deputy. However, where family disputes are present, it is possible that the court chooses an independent third party such as a professional deputy to become a deputy.

It is noted that a deputy is unlikely to be appointed for property and affairs matters unless the person who lacks capacity has property or assets that will become entitled to them, through an inheritance.

How to Appoint a Deputy

A person who wishes to appoint a deputy for another person should apply to the court to do so. The person should state what particular decisions the person who has lost mental capacity cannot make, and what affairs the deputy should be responsible for, such as decisions relating to property and affairs or personal welfare matters.

The court will then decide if a duty should be appointed after considering the factors above. The court can appoint more than one deputy, either jointly, or jointly and severally, or jointly on some matters but severally on others.

The deputy appointed must agree to the appointment and act in the best interests of the person. The deputy must also be at least 21 years old. We have a guide that explains the procedure for appointing a deputy in Singapore in greater detail.

The lawyer should play a crucial role in helping one apply to the court for a deputy to be appointed. This is especially so, since the only way a deputy can be appointed is through the court, and a lawyer’s expertise is necessary in fulfilling the formalities required for an application to court, and in stating the case for an appointment of a deputy.

Estate Planning
  1. Fiduciaries and Fiduciary Law in Singapore
  2. Muslim Inheritance Law in Singapore
  3. What Happens to Your Debts When You Die?
  4. How to Donate your Assets to Charity
  5. Organ Donation in Singapore (under HOTA, or For Science)
  6. Can I Use My Will to Distribute Insurance Proceeds?
  7. 8 Tools You Must Know for Estate Planning in Singapore
  8. Who Pays for the Mortgage Debts and Medical Bills After Death?
  9. Complete Guide to CPF Nominations and How to Make One in Singapore
  10. Is Inheritance Tax/Estate Duty Payable When You Die in Singapore?
  11. Missing Persons Singapore: Legal Steps to Find and 'Presumed Dead'
Making a Will
  1. How Do I Make a Will?
  2. Choosing an Executor for Your Will in Singapore
  3. Get An Affordable Will Made By Experienced Lawyers
  4. Where Should You Store Your Will?
  5. Why Should You Make a Will?
  6. What is a Mutual Will, Mirror Will and Joint Will?
  7. How Can I Change My Will?
  8. Checklist for Drafting a Comprehensive Will in Singapore
  9. Appointing a Guardian for Your Children in Your Will in Singapore
  10. The Complete Guide to Making Your Will in Singapore
Preparing for Incapacity
  1. How to Plan for Mental Incapacitation
  2. What is a Lasting Power of Attorney and How to Make One in Singapore
  3. Advance Medical Directives in Singapore
  4. Appointment of Deputies under the Mental Capacity Act
  5. Revocation of a Lasting Power of Attorney
  6. How to Appoint a Deputy for a Loved One Lacking Mental Capacity in Singapore
  7. Advance Care Planning in Singapore: Why and How to Get Started
  8. Mental Capacity Assessment for LPAs and Wills
Setting Up a Trust
  1. What is a Trust? Trust Law in Singapore
  2. Setting Up a Discretionary Living Trust in Singapore
Distribution of Estate Assets
  1. An Executor’s Checklist to Executing a Will in Singapore
  2. What Happens If You Die Without a Will in Singapore?
  3. How Do I Contest a Will?
  4. Wills, Probate, and Executors: What to Do When a Loved One Passes Away in Singapore
  5. Letters of Administration - Intestacy law in Singapore
  6. Unfair Maintenance: What Can Singapore's Law Do for You?
  7. Applying for a Grant of Probate in Singapore
  8. Can a half-brother be considered a next of kin? (when distributing the assets of the deceased)
  9. What happens to property when a deceased’s next-of-kin or named personal representative is uncontactable?
  10. Obtaining a Fresh Grant of Probate and Resealing a Foreign Grant of Probate
  11. What happens to residuary property not accounted for?
  12. What happens to a Singapore expatriate's assets when he passes on?
  13. How to Access the Bank Account of a Deceased Spouse
  14. What happens to my assets overseas when I pass on?
  15. What Happens to the HDB Flat When One Owner Passes Away?
  16. Simultaneous Death: How are Assets Distributed When Family Members Die at the Same Time?
  17. What to Do If the Will Cannot be Found
  18. What to Do If There are Disputes With or Between the Executors of a Will in Singapore
  19. What If a Beneficiary Dies Before Receiving His Inheritance?
  20. What Happens to the Car When the Owner Passes Away?
  21. How Can Your Minor Beneficiaries Receive Their Inheritance?