Mental Incapacity in Singapore: A Guide
The Singapore government foresees that as the population ages, mental illnesses will have a larger impact on society. In anticipation of the conflicts that may occur when one becomes mentally incapacitated, the Mental Capacity Act has been introduced. We summarise the salient points below.
When is there mental incapacity?
Section 4 of the Mental Capacity Act states that a person lacks capacity in relation to a matter if at the material time the person is unable to make a decision for himself or herself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. It does not matter whether the impairment or disturbance is permanent or temporary.
What does it mean to be “unable to make a decision”?
According to section 5, a person is unable to make a decision for themselves if they are unable to:
- understand information relevant to the decision;
- retain that information;
- use or weigh that information as part of the decision-making process; or
- communicate his or her decision (whether by talking, using sign language or any other means)
If the person can understand information using visual aids, simple language or other means, the person is still regarded as being able to understand.
If the person can retain the information relevant to a decision for a short period only, it does not prevent the person from being regarded as being able to make the decision.
Mental Capacity Act: Planning for Mental Incapacity
Thanks to the Mental Capacity Act, anyone above the age of 21 can choose a someone, known as a donee, to make decisions for him in case he becomes mentally incapacitated. This is done through a legal document known as a Lasting Power of Attorney (LPA). The LPA is not a will and does not detail the distribution of assets after the person in question has died. It simply details who will take care of personal welfare or healthcare, and who will take care of the financial matters if the person loses his mental capacity.
Who can be a donee? A donee should be someone you trust who is competent to make decisions and act on your behalf. It can also be a professional donee who is paid. By law, the donee must be:
- a person older than 21 years old who provides the services without remuneration;
- an individual who is a professional donee and is not related to the person by blood or marriage; or
- if the powers relate to the person’s property and affairs, the donee may also be a professional donee who is not an individual
The LPA is a very flexible document. Users can choose between Form 1, which gives the donee a wide range of powers and is suitable for husband and wife and Form 2, which allows for very specific distinctions. Form 2 has to be drafted by a lawyer.
The LPA has to be lodged online with the Office of the Public Guardian under the Ministry of Community Development, Youth and Sports. The necessary forms and other information can be found on the Office of the Public Guardian website.
Mental incapacity where there is no LPA: Deputyship
The Mental Capacity Act also regulates for a situation where a mentally incapacitated person has not made an LPA. In such a case, the court has the overall authority over the welfare of the mentally incapacitated person.
In practice, it is common for the loved ones of the mentally incapacitated person to file a court application to be made a court deputy, so that they can take charge of the person’s affairs. A common use-case is where they wish to use the person’s own savings or property to fund his or her medical bills. The court will approve such an application where it is in the person’s bests interests.
Protection for the mentally incapacitated
A general principle under section 3 of the Mental Capacity Act is that an act done or a decision made on behalf of a person who lacks capacity must be done or made in their best interests. In addition, when it comes to deputyship, courts are able to restrict the scope of power and the duration of the deputyship.
There are also specific exclusions to decisions that may be made on behalf of another person. These include:
- consenting to marriage
- consenting to touching of a sexual nature
- consenting to divorce based on 3 years’ separation
- consenting to adoption order
- adopting or renouncing a religion
- receiving gender-change treatment
- consenting to sexual sterilisation
- consenting to terminate a pregnancy
- consenting to organ donation
- making an Advanced Medical Directive
Deputies and donees are also overseen by the Office of Public Guardian to ensure compliance in exercising their duties.
If you wish to plan for the future with an LPA, or to consult about issues related to your loved one, do consider speaking to a lawyer who can advise on your next steps.
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