Mental Capacity (Amendment) Bill – Speech by Dennis Tan

(Delivered in Parliament on 14 March 2016)

Madam Speaker, I would like to declare my interest in that as a lawyer, I have assisted in matters relating to the Mental Capacity Act.

Madam, I am in support of the proposed amendments to allow the appointment of professional donees and professional deputies. I recognise that it is necessary to allow such appointments as some persons who are subject to the Act may not want their family members to take charge of their personal matters or be their donee or deputy, or some people simply do not have a suitable relative or friend to be their donee or deputy.

Madam, fuller details of the requisite criteria and qualifications for professional donees and deputies should be provided in the Act or in the subsidiary legislation. The criteria should go beyond just allowing people to qualify as professional donees and deputies by merely being a trust company or members of certain professions (say for example, doctors, lawyers, accountants or social workers) or even community groups. Each individual candidate for professional donee or deputy, including professional staff of a trust company, must have the relevant training. They must also have the right attitude. Will the Minister please share with the House more details of the criteria and training for professional donees or deputies and clarify whether such criteria will be listed in a subsidiary legislation?

Next, the system of professional donees or deputies should be affordable and accessible to the average Singaporean. It is important that the fees of the professional donees or deputies be subject to control and regular review by the Ministry or by the Courts. Will the Minister explain how the Ministry intends to ensure that the fees will be kept affordable to the average Singaporean? How does the Ministry expect the Courts to determine the remuneration under the proposed new Section 24(8A)(b)? May I suggest that the Ministry should have a fixed set of scale fees which the courts can then use as a guide or benchmark and this scale can be adjusted from time to time when necessary.

In any case, there may also be some people who will not be able to afford a professional donee or deputy and, at the same time, are not able to find a suitable person to do it for free. For deserving cases where the persons are unable to pay for a professional donee or deputy, it is important that the Ministry should still allow access to professional donees or deputies by allowing such fees to be paid for or waived. Indeed, I am encouraged by the opening remarks of the Minister. Indeed, there should be an equivalent of a legal aid mechanism where the Ministry can fund deserving cases. Alternatively, the Ministry should consider starting a pool of suitable and trained volunteers who can assist in such cases on a pro bono basis.

Madam, I support the new provisions for the appointment of an auditor to assist the Public Guardian in examining any report of a donee or a deputy. I also support the new amendments for the additional persons including the Public Guardian to apply to the court for an order to suspend the powers of a donee or deputy. This will allow the Public Guardian to intervene in suitable cases where the donee or deputy may not be carrying out its duties properly and the interest of the persons which the Act seeks to protect can be better safeguarded.

Madam, as a lawyer, my observation is that the present application process for deputies, when compared to the previous regime, is more complicated, time consuming and possibly more costly. May I suggest that the Ministry expend more efforts in their dialogue with the Family Courts to see how the procedure can be further simplified, so that it will take less time, require less paperwork and the court hearings be further minimised?

We should in fact make it easier and less costly for any lay person to make such application directly. For example, instead of using formal court application summonses and affidavits, we can also consider using appropriate layman friendly application forms supported by statutory declarations. The current affidavit template can be converted to such a form. Perhaps we can think out of the box here? If we can simplify the application, the legal fees can be further reduced. The court filing fees for all documents can also be reduced by not having it pegged to the existing court filing fees for court summonses and affidavits.

I would also suggest that even for the present regime, a detailed checklist can be published on the relevant website of the likely issues that need to be addressed in each application and the depth at which the issues need to be addressed. This may help lay people to better understand the requirements readily.

With that, Madam, I support the bill.