Mental Capacity Assessment for LPAs and Wills

Last updated on April 20, 2024

With Singapore’s rapidly growing ageing population , you may be considering obtaining a Lasting Power of Attorney (LPA) or a will for yourself or your aged loved ones. To many, these instruments provide a legal safeguard and offer peace of mind in the event of an unforeseen circumstance, such as the onset of dementia or death.

To ensure that the LPA/will you make would not be considered void in future, you may want to consider an assessment of mental capacity.

Making a Lasting Power of Attorney

A Lasting Power of Attorney is a legal document which allows a person (i.e. a donor) who is above the age of 21 to appoint one or more persons (i.e. donees) to act on his/her behalf should he/she lose mental capacity one day.

As appointed donees are often family members or close friends whom you trust, this may relieve the stress on your loved ones should you face a loss of mental capacity one day. You can find out more about how to make an LPA in our other article.

Prior to making an LPA, the certificate issuer must ensure that the donor understands the purpose and scope of the LPA. The certificate issuer must be:

  • a practising lawyer,
  • a registered psychiatrist, or
  • a medical practitioner accredited by the Office of the Public Guardian.

However, no formal medical assessment of the donor’s mental state is required at this point, unless the certificate issuer has doubts on the donor’s ability to provide instructions.

Should such doubts arise, the certificate issuer should seek the opinion of a qualified medical professional.

What is mental capacity for the purpose of getting an LPA?

Under the Mental Capacity Act, a person lacks mental capacity if they are:

“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.”

According to paragraph 4.3.1 of the Code of Practice issued by the Office of the Public Guardian, mental capacity does not refer to the donor’s ability to make decisions in general. A person may be capable of making some decisions, but not others. Instead, it relates to a specific decision to be made at a particular time.

In addition, it does not matter whether the impairment or disturbance is permanent or temporary.

A donor is presumed to have mental capacity unless proven otherwise. If the donor is found to be mentally incapacitated, the donee authorised by the LPA can step in to act on the donor’s behalf, provided a valid LPA has been formed.

Types of mental incapacity

There are three types of mental incapacity:

  1. Permanent incapacity: for example, being in a permanent vegetative state or the end stages of Alzheimer’s disease
  2. Temporary incapacity: for example, being affected by certain prescription medication, or a head injury without irreversible damage to the brain
  3. Fluctuating capacity: for example, due to early stage dementia, clinical depression or schizophrenia

Assessment of mental capacity

An assessment of the donor’s mental capacity should be done when his/her mental capacity is in doubt. It can be made by different people depending on the type of decisions to be made.

There are 2 types of assessment:

  1. Informal
  2. Formal

Informal assessment

Informal assessments are appropriate for most day-to-day decisions, e.g. whether the person can go out alone. The assessor is typically the person’s caregiver.

The assessor must apply the statutory principles and give all practicable help to the person to make his own decision. If the person lacks capacity to make the decision, the caregiver will make the decision on behalf of the person.

Referring to section 7 of the Mental Capacity Act, this would entail:

  • Taking reasonable steps to determine whether the person lacks capacity about the matter in question before doing the act, and
  • Reasonably believing that the person lacks capacity and the act to be done is in the person’s best interests when doing the act.

If the decision concerns medical treatment (i.e. receiving or undergoing such treatment), the healthcare professional will assess the patient’s capacity to consent to or refuse treatment. If the healthcare professional is uncertain whether the patient has the capacity to make the decision, he may then request a formal assessment of capacity (discussed below). In complex cases, a multi-disciplinary team may be involved in making the assessment.

Formal assessment

Where the assessor is unsure of whether the donor lacks mental capacity, he/she should seek a formal assessment by an accredited GP or specialist who can conduct the assessment. To avoid any conflict of interest, the assessor should not be related to the person being assessed or the individual seeking the formal assessment of the person.

A professional, such as a lawyer, or the donee of an LPA may seek a formal assessment where they have doubts about the person’s capacity and the decision the person has to make is an important one. Examples of such decisions would include

  • Moving house, or selling a house or any property
  • Selling assets
  • Transferring assets to another individual or organisation

An individual or an organisation such as a bank, that deals with a donee of an LPA on a matter relating to the property of the donor, may require the donee to produce a certificate from an registered doctor stating that the donor’s lack of capacity relating to the matter is likely to be permanent (section 13(10) Mental Capacity Act). To obtain this certificate, the donee must first get the donor’s capacity formally assessed.

Wills

In addition to applying for an LPA, you may also contemplate writing a will. A will ensures that your property will be distributed according to your wishes in the event of death. Read more about making a will in our other article.

When is an assessment of testamentary capacity necessary?

For a will to be considered valid, the testator must:

  1. Have testamentary capacity;
  2. Have known of and approved the contents of the will; and
  3. Be free from the effects of undue influence or fraud.

Testamentary capacity is a legal term used to describe a person’s mental ability to execute a will at the time it is signed and witnessed. For example, if you suffer from a degenerative condition such as dementia, it is advisable that you seek medical assessment while making your will. This ensures that your will remains valid even if you lose mental capacity progressively later on.

Should you engage a lawyer to help you write a will, a prudent lawyer would likely advise you to undergo a medical assessment to establish that you possess testamentary capacity. This is especially so in cases where it is foreseeable that your testamentary capacity would be in dispute in future.

Nonetheless, it is not a requirement that every testator undergo an assessment. Should you have no known diagnosis that might raise doubts about your testamentary capacity at the time of making the will, you may choose not to undertake the assessment. You may also rely on the witnesses you appointed to be present at the time of signing the will to testify that you were of sound mind.

Assessment of testamentary capacity

Similar to the LPA, testamentary capacity is presumed where the will appears rational on its face and is duly executed in ordinary circumstances. However, a party contesting a will may rebut this presumption by providing evidence to the contrary.

Should you have undergone an assessment at the time of writing the will, the medical certification would be very useful in refuting the challenge. Otherwise, the matter would likely go to court for a judge to determine if you possessed sufficient testamentary capacity at the time of writing the will.

The assessment of testamentary capacity can only be carried out formally by medical professionals at a health institution. These health institutions may require submission of an application before the medical report may be prepared.

The particular psychiatric tests used in assessing testamentary capacity may differ from those used in mental competency assessments. This is given that testamentary capacity refers to a specific cognitive ability to make a will.

Where to Seek a Formal Assessment

Should you require a formal medical assessment either for making an LPA or before executing a will, you may go to most public or private health institutions that offer psychiatric services.

The fee for the assessment report differs based on the complexity of the case. The fee for such a report from a public hospital may range from $200 to over $400, while that of a private health institution may vary from approximately $800 to more than $1,000. Accompanying consultation fees vary according to the institution’s prevailing rates.

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