Mental Capacity Assessment for LPAs and Wills

Last updated on January 15, 2019

With a growing ageing population in Singapore, you may be considering obtaining a Lasting Power of Attorney (LPA) or a will for yourself or your loved ones. To many, these instruments provide a safeguard and a 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 made 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, known as a donor, above the age of 21 to appoint one or more persons, known as 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 relieves the stress on your loved ones should you face a loss of mental capacity one day. Find out more about how to make an LPA in our other article.

Prior to making an LPA, the certificate issuer, who must be a practising lawyer, a registered psychiatrist or a medical practitioner accredited by the Office of the Public Guardian, must ensure that the donor understands the purpose and scope of the LPA. 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 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.

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.

Assessment of mental capacity

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 forms of assessment:

  1. Informal
  2. Formal

Informal assessments are conducted by those without formal training or certification in mental capacity assessments. They are typically the donor’s caregivers. Such assessments are appropriate for most day-to-day decisions, such as whether the donor is able to use the bathroom alone.

The donor is assessed if he/she is able to make a decision, based on the guidelines stipulated in section 5 of the Mental Capacity Act. The assessor must bear in mind to provide all practicable help to the donor to make the decision. The assessor must also be deemed to have taken all reasonable steps to establish if the donor lacks capacity.

Where the assessor is unsure of whether the donor lacks mental capacity, he/she should seek a formal assessment by medical specialists and professionals. In particular, formal assessments should be sought when an important decision relating to the donor is to be made.

For example, the donor may be contemplating selling a property, or undergoing surgery. A donee handling the donor’s property may be required to produce a certificate by a medical practitioner stating that the donor’s lack of capacity is likely to be permanent.

During formal assessments by medical experts, thorough psychiatric tests will be conducted to determine if the donor possesses mental capacity to make specific decisions.

Wills

On top of applying for an LPA, you may contemplate writing a will as well. 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
  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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