The Ministry of Social and Family Development (MSF) will be holding a public consultation on the draft Mental Capacity (Amendment) Bill from 7 December to 28 December 2015. The public consultation will be hosted on the Government e-consultation portal, REACH.
The Mental Capacity Act was enacted in 2008 to put in place a legal framework for proxy decision-making that safeguards the interests of individuals who lack mental capacity. To guard against abuse of persons who lack mental capacity by their proxy decision-makers, the Public Guardian is also tasked to supervise deputies and investigate complaints pertaining to the exercise of donees’ and deputies’ powers.
Over the last few years, MSF has received useful feedback from the public, donors, donees and members of the Public Guardian Board on how the Act’s provisions can be refined to better serve and protect the dignity and interests of individuals who lack mental capacity.
Scope of Proposed Amendments
To better serve Singaporeans now and in the future, MSF proposes to amend the Mental Capacity Act. Key amendments include the following:
a. Introduce professional donees and professional deputies;
b. Revise the grounds in which an LPA or deputyship order can be revoked by the Court; and
c. Allow the Court to temporarily suspend a donee’s or deputy’s powers in the absence of a pending Court application
A list of key definitions are in Annex A.
Interested members of the public can submit their comments on the draft Bill by 2359 hours on 28 December 2015 via the following channels:
- Email to: firstname.lastname@example.org
- Fax to: 6708 7138, or
- Post to:
Family Development Group
Ministry of Social and Family Development
20 Lengkok Bahru, #04-02
- Donor: The person, at least 21 years of age, who makes a Lasting Power of Attorney, appointing donee(s) to take care of his personal welfare and/or property & affairs matters in the event he loses mental capacity one day.
- Donee: Donees are appointed by donors to make decisions and act on their behalf on personal welfare and/or property & affairs matters in the event the donors lack mental capacity to manage their own affairs.
- Lasting Power of Attorney (LPA): A legal document that allows a donor to voluntarily appoint one or more donees to make decisions and act on his behalf should he lose the capacity to make his own decisions.
- Deputy: A deputy is appointed by the court to make certain decisions on behalf of a person who lacks mental capacity when the person has not made an LPA and has no donee to decide on his behalf in respect of those decisions. A deputy can be an individual, or a licensed trust company for property & affairs matters.
- Personal welfare: Personal welfare decisions are lifestyle-related decisions that donees and deputies may be authorised to make on behalf of the mentally incapacitated individual concerned. Such decisions may include where the mentally incapacitated individual is to live and health care decisions (if this power is expressly given).
- Property & affairs: Property & affairs decisions are decisions about property and financial matters that donees and deputies may be authorised to make on behalf of the mentally incapacitated individual concerned. Such decisions include whether property belonging to the mentally incapacitated individual should be sold and how his assets are to be used in his best interests.
- Revocation (of an LPA): When an LPA is revoked, it means that the donee appointed by it is no longer authorised to act on behalf of the donor.
- Suspension (of an LPA): When an LPA is suspended, it means that the donee appointed by it is temporarily unable to act on behalf of the donor. The donee’s powers may be reinstated at a later date when the Court thinks fit.
- Certificate issuer: A certificate issuer is an individual who is authorised by law to certify that, when an LPA was made: (i) the donor understood the LPA and its scope; (ii) the donor was not induced by fraud or undue pressure to create the LPA; and (iii) there is nothing else that would prevent the LPA from being created. Currently, registered psychiatrists, medical practitioners accredited by the Office of the Public Guardian, and practising lawyers can be certificate issuers.
- Public Guardian (PG): The Public Guardian carries out various functions towards enabling and protecting persons who lack capacity. These functions include:
• Setting up and maintaining a register of Lasting Power of Attorney ("LPA") and a register of court orders that appoint deputies;
• Supervising deputies;
• Receiving reports from donees and deputies; and
• Investigating any alleged violation of any provision in the Mental Capacity Act, including complaints about the way in which donees and deputies are exercising their powers.
- Mental incapacity: An individual lacks mental capacity in relation to a matter if, at the material time, he is 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. An individual is unable to make a decision for himself if he is unable to: (i) understand the information relevant to the decision; (ii) retain that information; (iii) use or weigh that information as part of the decision-making process; or (iv) communicate his decision (whether by talking, using sign language or any other means).