Guide to Mental Capacity Act in Singapore
Nowadays people are living longer than ever before, but with an aging population comes an increase in mental illnesses. To protect the population in Singapore, the Government introduced the Mental Capacity Act 2008, which came into force from 2010.
The legislation enables anyone older than 21 to appoint someone to act on their behalf, should they ever lose their mental capacity and be unable to make decisions. The Act also lets the parents of mentally handicapped children ask the court to appoint a trusted person to act as a deputy and make decisions on behalf of the children, when their natural parents die.
In 2016 the law was amended to allow for professional donees and deputies; these act on behalf of those people who don’t have any close friends or family who could make decisions for them. At the same time, the 2016 changes to the law made the Public Guardian Office more effective.
A person who acts on behalf of someone under the powers of the Mental Capacity Act must follow the code of practice, which explains how the Act works practically.
How is a mentally ill person protected by the Mental Capacity Act?
The aim of this legislation is to balance an individual’s right to make decisions for themselves, with the need to protect them where they lack the mental capacity to act for themselves.
The Act sets out five core principles (section 3) which have to be applied when a person makes decision on behalf of someone else:
- A person is presumed to have capacity until it is established that they do not have capacity.
- Nobody should be treated as lacking mental capacity, unless all practical actions have been taken to help them to act for themselves.
- Merely making an unwise decision does not mean someone is unable to make a decision or lacks capacity.
- Any decision made or actions taken on behalf of an incapacitated person must be made or taken in the best interests of that person.
- Actions or decisions made on behalf of a person lacking capacity should be less restrictive on that person’s right and freedom to act.
These principles show that the Act aims to help incapacitated people to make decisions, not to restrict them or exercise control over them. At its heart, the law aims to ensure all actions and decisions are made in the person’s best interests.
What is a person’s “best interest”?
While the Act does not define someone’s best interest, there are many factors which can be used to identify someone’s best interest. These include someone’s age, health, family circumstances and personal situation.
But to prevent a narrow focus on these aspects alone, where assumptions as to what’s best might be made, other factors need to be taken into account. In section 6 of the Act, a number of steps are listed which should be followed when acting on behalf of someone else. For example:
- Will the person regain capacity at some time so they can make the decision themselves? If so, the decision has to be delayed, unless it is a true emergency.
- What are the person’s past and present wishes, if known?
- Do they have any feelings, values or beliefs which are likely to impact on how they would make the decision, if they could?
This list of factors is not exhaustive, and as many as possible should be taken into account, as should the wishes of anyone close to the incapacitated person.
When does someone lack capacity?
According to section 4 of the Act, someone lacks capacity if, at the material time, that person is not able to make a decision for themselves due to a disturbance or impairment in the functioning of their mind or brain. Whether the impairment is temporary or permanent does not matter.
When can a person no longer make their own decisions?
The circumstances when someone cannot make a decision for themselves are set out in section 5 of the Act:
- They cannot understand information needed to make the decision,
- They can’t retain that information
- They can’t use or weigh up that information as part of the process of decision-making,
- They aren’t able to communicate their decision in any way.
Note that if someone can understand an explanation of the relevant information when given in another way (such as visual aids, or simplified language), then they are regarded as having understood the information.
Likewise, even if an individual can only retain relevant information for a short time, they can still be regarded as being able to make a decision.
How is ‘relevant information’ defined?
Relevant information, needed to make a decision, means the reasonably foreseeable consequences of making a decision one way or another, or of not making that decision.
Protection for decision-makers
Certain protections are given to caregivers and professionals when they decide on behalf of someone else, protecting them from liability, as long as they took all reasonable steps to check the person does, in fact, lack capacity, and that they acted in their best interests.
However, they will not be protected if they:
- Use inappropriate restraint,
- Enrol someone in a clinical trial,
- Commit negligent acts or omissions,
- Commit any acts which fall outside of their scope of authority.
Lasting Power of Attorney – protection against future mental incapacity
Drawing up a Lasting Power of Attorney helps people to plan for a situation where they may lose the ability to make decisions for themselves due to incapacity. An LPA lets you appoint a ‘donee’, who acts on your behalf and makes decision for you about:
- Your financial affairs and any property you have
- Your healthcare arrangements or personal welfare
An LPA is a legal document, and the person who creates it (known as the donor) has to be 21 years of age or older and have the necessary mental capacity to create a valid LPA. The LPA will only begin to operate if and when the donor loses their mental capacity.
Wide-ranging authority can be given to the donor, but the donor can also restrict the donee’s authority, so they can only make decisions on certain things.
If you want the same donee to make decisions about both your finances/property and healthcare, then you must authorise them to do so, otherwise they cannot decide on both matters.
Who is eligible to be a donee?
According to the Act, a donee must be:
- Someone older than 21 years of age, who performs the duty without financial reward; or
- A professional donee, not related by blood or marriage to the donor; or
- A professional donee who is not an individual, if the powers relate to someone’s property and affairs.
As you can see, a donee could be a family member, a trustworthy and competent person, or a professional person or entity who receives payment to be a donee.
Reasonable care and skill should be shown at all times by donees, and those who paid must meet an even higher standard of skill and care.
Court protection for mentally incapacitated people
The court has general authority to rule on whether someone does or does not have the necessary mental powers to make a decision on a certain matter.
Sometimes they might have to rule on where an act or omission made on behalf of the incapacitated person is within the law – i.e. whether it was done in their best interests.
If the person who lacks mental capacity did not make an LPA, then the court may have to make decisions on that person’s finances, property or welfare. At all times, the court will follow the section 3 principles to ensure the person’s best interests are satisfied.
Sometimes a court might appoint a deputy to make future decisions, or those that are ongoing. The court must then follow section 20(4) of the Act and consider that:
- A court decision will always be preferable to a decision made by an appointed deputy
- Any deputy appointed should have the scope of their powers limited to only what is reasonably practicable in the circumstances.
Who can be a deputy?
A deputy could be:
- Someone older than 21 who does it for free
- Someone who is a professional deputy, unrelated to the incapacitated person by marriage or blood
- A professional deputy, (not an individual), if the powers relate to someone’s affairs or property
- A family member, trusted person or friend, so long as they are older than 21, not bankrupt, and of sound mind.
Who supervises the donee or deputy?
When exercising their duties, all appointed individuals must adhere to the code of practice. A record of all LPAs and deputies is held by the office of the Public Guardian, who will also supervise deputies appointed by the court, and handle complaints about donees or deputies.
What decisions cannot be made on behalf of a mentally incapacitated person?
Certain decisions cannot be made on behalf of someone who is lacking mental capacity. These are set out in section 26 and include:
- Agreeing to marriage
- Agreeing to be touched in a sexual way
- Agreeing to get divorced, based on three years of separation
- Agreeing to an order for adoption
- Agreeing to be sexually sterilised
- Agreeing to the termination of a pregnancy
- Agreeing to donate an organ
- Receiving gender changing treatment
- Adopting or renouncing a religion
- Making an Advanced Medical Directive.
The law, through the Mental Capacity Act, seeks to show that it respects decisions made by mentally fit people and will protect mentally incapacitated people from exploitation or abuse.
If you want to make sure you are protected in case you lose mental capacity in future, or you’re concerned about a loved one being protected, then speak to a deputyship lawyer – they will advise you on the best actions in your particular circumstances.
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