Mental Capacity (Amendment) Bill – Speech by Sylvia Lim

(Delivered in Parliament on 14 March 2016)

The Bill enhances the regime of the Mental Capacity Act passed in 2008. The Bill will allow professionals to become donees and court-appointed deputies under the Act. It also gives the Court additional powers to manage cases where a donee’s or deputy’s powers may need to be revoked, restricted or suspended. While I support the rationale of the Bill, I wish to raise three concerns. First, early intervention in problematic LPAs: secondly, about the process for parents of disabled children to be court-appointed deputies; and thirdly, to seek a clarification on changes regarding the accountability of the Public Guardian.

Early Intervention in Problematic Lasting Powers of Attorney

While the benefits of LPAs are clear, the risks have also been painfully clear in recent years. Vulnerable persons may sign away their rights to property to persons who have unduly influenced them. Besides the well-publicised case involving a wealthy widow which Minister mentioned earlier, I have received feedback from residents concerned that a family member may have appointed someone outside the family as his attorney. In these cases, it is foreseeable that some time down the road, when the LPA is activated due to mental incapacity, the attorney and the family may have disagreements and disputes over how the person should be cared for or his properties dealt with.

I am not saying that a person is not entitled to appoint someone outside the family as an attorney. Indeed, I totally agree that there may be very good reasons why a person may not want any family member to be his attorney, and may not want the family to know of such an appointment.

However, currently all that is needed is for a standard form to be filled up by the person and issued by a doctor or a lawyer, who may not have any prior knowledge of the person or his circumstances. To illustrate, I am told that under a well-intentioned ground initiative, large groups of heartland residents were organized to make LPAs at the Ministry, issued by persons who had not met them before.

Earlier, the Minister mentioned that the LPA Information Sheet is being amended to encourage donors to inform their loved ones of the making of the LPA.

I would like to ask if the default LPA form could retain a question asking the donor if he wishes to notify another person about the making of the LPA. Under the original MCA framework, if the donor named another person to be notified about the making of the LPA, the named person would have an opportunity to object to the registration of the LPA. The objection would then need to be assessed by the Public Guardian or the Court before the LPA can be registered. Such a regime would enable LPAs granted in controversial circumstances to be flagged out early, before the LPA takes effect. This potentially prevents the registration of unsound LPAs before the donee takes charge of the properties of the donor. Moreover, the objection to the registration of the LPA will likely be made when the donor is still mentally lucid and can give invaluable assistance to the Public Guardian or the Court to determine if the LPA should be registered or not.

This option to notify a named person was removed from the default LPA form in 2014. From what I gather, the government did not see the need to retain this feature, as it was always open to the donor to notify someone if he wished to. Nevertheless, my view is that it is good to ensure that the donor is ALWAYS asked whether he wants someone to be notified, so that he will direct his mind to that question specifically.

If this is adopted, we will still be respecting the donor’s wishes – he can decide if he wants to notify somebody else or not.

Court-Appointed Deputies

I next move on to deputies, who may need to be appointed by the court after a person has become mentally-incapacitated. The concern is about the legal costs associated with such applications.

The estimated legal costs for such applications is about $6,000 to $7,000, even in the clearest of cases. For instance, parents of mentally-incapacitated children need a court order to act for their children once they attain adulthood. It is clear that these parents would continue to care for their children, with or without a court order.

At last year’s COS, we were told that the Ministry would “work with the Court to simplify the process and improve accessibility of the court processes, and also to reduce the cost to make it easier for the families”. It was reported (Straits Times, 10 Aug 2015) that in March last year, a pilot project involving law students enabled costs of such applications to be brought down to about $250. In January this year, the Ministry said that it was still working with the Family Justice Courts and MINDS (Movement for the Intellectually Disabled in Singapore) on how to simplify the paperwork and process in such cases.

This review has been going on for many months already. Is the Ministry able to confirm or estimate when this review will be completed?

Accountability of Public Guardian

Earlier the Minister explained the rationale for Clause 11 and why the Public Guardian Board was being abolished.

I have a question about Clause 12. S 34 of the current Act provides for the Public Guardian to make annual reports to the Minister about the discharge of his functions. I believe these reports are uploaded on the website of the Office of the Public Guardian as well.

Clause 12 repeals this provision totally, which suggests that the Public Guardian need not produce annual reports anymore. Could the Ministry explain why this section is being repealed? How will this affect the public accountability of the Public Guardian?