Mental Capacity (Amendment) Bill – Speech by Sylvia Lim

Delivered in Parliament on 5 July 2021

I declare that I am a lawyer who is involved in the issuance of Lasting Powers of Attorney (LPAs). I have also had personal experience as a court-appointed deputy of a mentally incapacitated person.

The primary purpose of this Bill is to enable the Office of the Public Guardian (OPG) to establish an Electronic Transaction System to facilitate the execution and registration of LPAs and other documents.

I am generally in support of this Bill, which promises to make it more convenient for the public to execute LPAs and register them, instead of needing to print and submit wet-ink documents to the OPG. Another group of persons who would benefit are court-appointed deputies, who will also be able to transact online with the OPG and retrieve information more easily. There are also provisions to alert donors of suspicious circumstances surrounding the intended LPAs, which are well-intentioned.

Even as the move is to go online, the Ministry has decided to retain the requirement for an LPA donor to appear in person before the certificate issuer. While some have called for this requirement to be done away with and allow donors to appear remotely, I disagree. The in-person appearance is important, as it will enable the certificate issuer, whether a lawyer, a psychiatrist or accredited medical practitioner, to make some assessment as to whether the donor is making the document out of free will.   In comparison, having the donor appear online may be convenient, but online certification also carries a higher risk that there are unseen persons or forces adding pressure to the donor to execute the document. Similarly, out of caution, the government has decided not to expand the category of professions who can issue LPAs. Again, I agree that caution is warranted. We have already seen hostile litigation among family members over LPAs, with lawyers and doctors dragged in to justify their assessments of whether the donor was mentally capable or incapable at various points in time. It is prudent not to include other suggested groups like religious and grassroots leaders without much more consideration.

This Bill will mandate that LPAs be executed and registered digitally from now on, and reports by deputies be filed online. As with all things digital, there are concerns about those who will find it difficult or even oppressive to do so, and how we need to include them in the implementation of the OPG Online. MP for Sengkang GRC Louis Chua will elaborate on this, while my colleague in Aljunied GRC Leon Perera will offer his suggestions for some reform for the future.

For my part, I wish to seek clarifications about three clauses in the Bill – the proposed Section 10C(2), Clause 12 and Clause 17(2).

First, the proposed Section 10C(2). This will allow for the Public Guardian to provide alternative ways to transact with its office if the transaction cannot be carried out through the online system “due to a person’s physical disability or other circumstance, or because the system is unavailable, or for any other reason”. It would be useful for the Ministry to elaborate on the scope of these exceptions. When we say a person is unable to use the system due to physical disability, are we referring to a person who cannot use his fingers to key in digital ID, or who is visually-impaired? What is the scope of the wide phrase “for any other reason”? Would this include for instance, persons who are hospitalised or incarcerated?

Second, Clause 12 will give new powers to the Public Guardian to interview the donor. The new Section 31A provides that the Public Guardian may require the donor to appear before him if there is reasonable cause to suspect that fraud or undue pressure was used to induce the donor to execute the LPA or to appoint a particular donee. It is further stated that one of the grounds for such suspicion is the number of LPAs registered or pending registration with the same donee.

This provision is well-intentioned but raises a few questions. Although it is stated that the Public Guardian can require the donor to be interviewed, it is not stated what the consequence will be if the donor does not attend. This could happen for innocent reasons like not being physically mobile. What will the Public Guardian do in that circumstance? Earlier, the Parliamentary Secretary mentioned that the Public Guardian might apply to court for a decision whether to deregister the LPA. Could he clarify if the PG could decline to register the LPA in the first place?   Next, on what basis will the Public Guardian find reasonable cause to suspect fraud or undue pressure? Would the Public Guardian largely rely on information given to it, rather than initiate its own investigations? Third, the Bill specifically suggests that being a donee in multiple LPAs is a suspicious circumstance. How will this operate in practice e.g. if I am named a donee by three family members, will that be considered suspicious? Indeed, the likelihood of family members appointing the same donee is increasing, as many of us need to assist elderly relatives who are unmarried or childless.

Finally, Clause 17(2) of the Bill will facilitate the Public Guardian giving special approval for LPAs to be executed remotely. This may be allowed with prior approval, if the Public Guardian is satisfied that there is “good reason” why the donor cannot appear physically before a certificate issuer to execute the electronic document. Given what we have discussed about the risks of not appearing in person before the certificate issuer, it would be useful to know what scenarios are being contemplated as constituting “good reasons”. Indeed the Ministry has stated in its Public Consultation summary that “exceptional circumstances” need to be shown. Could the Parliamentary Secretary elaborate on the possible scenarios contemplated eg. would it include donors who are overseas for long periods?

I look forward to hearing the Ministry’s responses to my queries.