FEATURE



Overview of the Mental Capacity Act


Singapore’s population is ageing rapidly. As our society ages, we expect a corresponding rise in dementia. At the age of 65 years, one in 20 may have dementia and the incidence could be as high as one in 10 by the age of 75 years. We will feel much safer if we knew that the person whom we were going to depend on at that point in time was someone whom we had chosen when we had the capacity to choose – someone whom we could trust and rely on and someone who was willing to undertake that burden.

Under the Mental Disorders and Treatment Act (“MDTA”), a Committee of the Persons or Estate may only be appointed by the Court to manage the personal welfare and finances of an individual of “unsound mind”. This Act has no provisions to allow individuals to plan ahead in appointing someone to tend to their affairs, should they lose capacity.

The Mental Capacity Act (“MCA”) came into operation on 1 March 2010. The Act empowers individuals while they still have capacity, to plan in advance for a time when they may lack the capacity to make decisions for themselves, with respect to the areas of personal welfare and financial matters. Even if the individual does not choose to elect a proxy decision maker in advance, applications can be made to the Court to appoint a deputy to make decisions on an individual’s behalf, when he loses his capacity. The MCA also enables parents of a child with intellectual disabilities to appoint a deputy to oversee the child’s welfare and financial matters.

Under the Act, individuals who wish to make advance plans for themselves can do so through a new statutory document known as the Lasting Power of Attorney (“LPA”). In the LPA, the individual (donor) can appoint a proxy (donee) to act or make decisions on his behalf for matters relating to his personal welfare and/or property and finances.

The Act also sets out safeguards to protect these vulnerable members of our society.

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Introduction

This article provides an overview of the MCA framework.  Starting out with the fundamental notion of choice, we delve deeper by exploring the key principles in practising mental capacity assessment and the concept of best interests.  With a good understanding of the basic principles underlying the MCA, we will cover some of the more practical issues and safeguards to protect the vulnerable individuals.

The MCA applies to a wide range of people, from family members to healthcare providers to formal and informal caregivers to third parties with whom transactions are made.

Choice

One of the key ideas underpinning the MCA is that of choice. The MCA provides an individual (donor) with the choice to appoint a trusted person (donee) in advance, to manage his affairs should he lose his capacity in the future.

Lasting Power of Attorney

LPA is a new legal document which allows a person who is 21 years of age or older (known as the donor), and who has mental capacity, to voluntarily appoint one or more persons (known as the donee[s]) that he trusts to act and make decisions on his behalf if he lacks mental capacity in the future.

An LPA takes effect when the donor loses mental capacity. A donee steps in only when the person has lost mental capacity.

The LPA allows for a person to plan for a possible future occurrence where he/she may lose his/her mental capacity. 

There are two prescribed LPA forms. If the donor wishes to give his donee(s) powers to decide on all matters for him, he may use the LPA Form 1, which is available at OPG (Office of the Public Guardian) or which can be downloaded from
www.publicguardian.gov.sg.  If the donor has more requirements to be included in his LPA, he should consult a lawyer to make the LPA, using LPA Form 2. 

An independent certificate issuer is required to explain the terms of the LPA to every individual looking to make an LPA, and ensure that the individual understands what he/she is signing, and that he/she is doing it voluntarily and is not making the LPA under duress. The prescribed certificate issuers include practising lawyers, psychiatrists and accredited general practitioners.

There is a six-week mandatory waiting period before an LPA can be registered. Objections which can be raised during this waiting period include:
1.   The donor made the LPA under duress.

2.   The donor does not have the mental capacity to make the LPA.

3.   The donor is a bankrupt and appoints a property and affairs donee.

Donee(s)

A donor may choose to appoint one or more donees for similar/different matters.  Any actions or decisions made by the donee on behalf of the donor must be made in the best interest of the donor.

The donee should be a family member or friend who is:
trustworthy;

reliable; and

competent to make decisions that you have authorised.

The types of decisions that a donee may be authorised by the donor to make may be about all or specific matters of the donor’s:
1.   Personal welfare (including healthcare decisions); and/or

2.   Property and affairs (including financial matters).

There are restrictions imposed on the donees and some of these include having no powers to decide on:
1.   life-sustaining or treatment to prevent serious deterioration;

2.   giving or refusing consent for treatment;

3.   Advanced Medical Directive;

4.   execution of a will; and

5.   making or revoking CPF and insurance nominations.

The donee is also prohibited from making  certain decisions on behalf of a person who lacks capacity. For example:
1.   Consenting to marriage;

2.   Consenting to divorces; and

3.   Matters relating to abortion.

Termination of donee’s powers or revocation of LPA

An LPA and/or powers of the donee(s) can be revoked under certain circumstances:
1.   The donor, while he still has mental capacity, decides to revoke the LPA;

2.   Death of the donor or donee;

3.   The donee loses mental capacity;

4.   Bankruptcy of the donor or donee terminates any powers granted by the LPA in respect of property and affairs; and

5.   Dissolution or annulment of the marriage between the donor and donee, unless the donor specified in the LPA that such an event will not cause the LPA to be revoked.

Court Appointed Deputy

In the event that a person loses the mental capacity and a decision has to be made but there is no proxy decision maker for this person, an application to the Court can be made to appoint a deputy for him. 

Parents of children with intellectual disability may also apply to Court to appoint themselves as a deputy for their children and another person as a successor deputy to plan for the event that the parents themselves lose capacity or pass away.

The types of decisions that a deputy may be authorised by the Court to make may be about:
1.   Personal welfare; and/or

2.   Property and affairs.

How to be appointed as a deputy

A deputy may be appointed for the person who lacks capacity by the Court through an application to the Court.  The applicant may wish to consult a lawyer for further advice.

Impact on Committee of the Persons/Estate under the Mental Disorders and Treatment Act

With effect from 1 March 2010, existing members of Committee of the Persons and/or the Estate appointed under the Mental Disorders and Treatment Act
shall be deemed as deputies appointed by the Courts under the Mental Capacity Act with the same powers and functions that were previously conferred by the high court as a member of the committee.

Guiding Principles

Definition of incapacity

Under the MCA, a person is defined to lack capacity if he is unable to make a decision or take an action for himself at the time the decision or action needs to be made. This can be caused by the impairment of, or a disturbance in the functioning of the mind or brain. The impairment or disturbance could be permanent or temporary.

A person lacks mental capacity if he or she cannot do one or more of the following things:
1.   Understand the information relevant to that decision;

2.   Remember that information;

3.   Use or weigh that information as part of the decision-making process; and
 
4.   Communicate that decision by any means, eg, talking, using sign language, drawing etc.

Assessment of capacity

The Act provides a two-step test in assessing capacity:
Step 1:   Is the person suffering from an impairment of, or a disturbance in the functioning of the mind or brain?

Step 2:   If yes, does that impairment or disturbance impede the person from making the decision when it is required?

The key principles

The Act sets out five key principles that should be borne in mind when making decisions for someone who appears to lack capacity. Please see Table 1.

 

 

 

 

 

 

 

 






Safeguards

With the powers conferred on the donees and deputies, there is also a need to balance them with safeguards to protect the person who lacks capacity. The Act sets limits and restrictions as to what the donees and deputies can or cannot do. Some of the key safeguards are highlighted below.

Ill-treatment and willful neglect

Under the MCA, acts of ill-treatment and/or willful neglect towards the person who lacks capacity will be treated as criminal offences.  Any caregiver, donee or deputy found guilty of such an offence can be imprisoned, fined or both.

Ill-treatment of an incapacitated person is defined in the MCA to consist of acts that will cause the victim to experience:
1.   unnecessary physical pain, suffering or injury;

2.   emotional injury; and

3.   injury to health and/or development.

Ill-treatment can be carried out in the following ways:
1.   Physical abuse, eg, hitting or other forms of violence;

2.   Sexual abuse, eg, rape or molestation;

3.   Financial abuse, eg, financial fraud;

4.   Psychological abuse, eg, verbal abuse or threats of harm; and

5. Willful and unreasonable neglect, eg, ignoring the basic health and physical care needs.

Excluded decisions

There are some decisions that are so sensitive or personal that no proxy decision maker would be able to make on behalf of the person who lacks mental capacity.  These are known as “Excluded Decisions” as shown in Table 2.

 

 

 

 

 

 

 

 

 

 

 










Office of the Public Guardian

The OPG, headed by the Public Guardian, is set up under the MCA to provide a range of functions that contribute towards the protection of persons who lack capacity. Such functions include:
1.   Providing information to help potential donors understand the importance of planning in advance and making an LPA;

2.   Setting up and maintaining of a register of LPA and court orders appointing deputies;

3.   Supervising court-appointed deputies;

4.   Receiving reports from donees and deputies; and

5.   Dealing and investigating complaints relating to how a donee or a deputy is discharging his duty.

The OPG is supported by a Board of Visitors (“BOV”), who looks into the well-being of the person who lacks capacity as well as provides independent advice on matters relating to donees and deputies, as requested by the Court or the Public Guardian. Included in the BOV are Special Visitors who are approved and registered healthcare professionals with special knowledge and experience in cases of impairment or disturbance of the mind or brain.

Caregivers

The MCA also provides statutory protection for formal and informal caregivers who have discharged their duties without negligence and in the best interests of the mentally incapacitated. This protection covers both civil and criminal liability.

The protection is especially important for informal caregivers, who are most likely family members of the person who lack capacity. This allows them to confidently discharge their duty of care, without fear of being criminalised, as long as they are acting in the best interests of the person.

Whistleblower protection

To encourage individuals to report suspected ill-treatment to the Public Guardian, witnesses in court proceedings do not have to identify the individual who reported the suspected ill-treatment or produce any report that is likely to identify that individual.

Healthcare workers who make such reports will not be in breach of their professional ethical codes when they report such cases.  The MCA grants immunity to healthcare service professionals from civil or criminal liability when they alert the Public Guardian to cases of ill-treatment or willful neglect of a person who lacks mental capacity.  This immunity applies as long as such disclosure was made in good faith.

Conclusion

At the heart of the MCA lie three basic tenets: choice, dignity and the social safety net.  This legislation is a small  safety net for people as they age, to ensure that the people can age with dignity and also have access to the property and assets they have built up to maintain them during their lifetime.

Cynthia Chan
Assistant Director
Office of the Public Guardian, Ministry of Community Development, Youth and Sports
E-mail: enquiry@publicgurdian.gov.sg