PUBLIC CONSULTATION ON MENTAL CAPACITY (AMENDMENT) BILL 2020

Mental Capacity (Amendment) Bill: Summary of Feedback and Government’s Response

1. The Ministry of Social and Family Development (MSF) sought feedback from the public on amendments to the Mental Capacity Act (MCA) from 28 October 2020 to 18 November 2020. We received 9 responses. There was general support for the proposed amendments to enable the digitalisation of the Lasting Powers of Attorney (LPAs) and filing of deputyship reports, as well as enhancing the protection of donors and persons who lack capacity. 

(A) Comments on amendments to the MCA proposed by MSF

Donors to appear in person before the Certificate Issuers

2. There was feedback to remove the requirement for donors to visit an LPA Certificate Issuer (CI) in person to increase the convenience of making an LPA. The LPA is a significant legal document that allows a person appointed as a donee to act on the donor’s behalf when the donor loses mental capacity. We have chosen to retain the important safeguard for a donor to attend in person before the LPA CI to ensure that the donor understands the purpose of the LPA and the scope of the authority conferred on donees in the LPA, and that no fraud or undue pressure was used to induce the donor to make the LPA. We wish to clarify that it is not a requirement for both donors and donees to be present before the LPA CI; only the donor is required to attend in person before the CI to sign the LPA.

3. In exceptional cases, the Public Guardian would allow the CI to witness the LPA execution remotely. There was feedback that it would be burdensome to require LPA CIs to make a prior application to the Public Guardian before carrying out remote witnessing. As remote witnessing is allowed only under exceptional circumstances, prior application is needed for the Public Guardian to assess the merits of the case and to ensure sufficient safeguards are in place for the remote witnessing. We will take the operational concerns into consideration when implementing this proposal. 

Class of persons that may be LPA CIs

4. There was feedback to consider expanding the class of persons that may certify an LPA to include selected senior religious leaders and grassroot leaders to make it more convenient, especially for the elderly, and more cost efficient. 

5. Today CIs must be either accredited Medical Practitioners, Psychiatrists or Lawyers. Expanding the class of persons who may be an LPA CI is one way of increasing the convenience for persons seeking to make an LPA. We will take this feedback onboard and review if more professions could potentially be LPA CIs. Meanwhile, we are working with community partners to enhance the accessibility and convenience of citizens in making an LPA application. 

Alerting donors if their prospective donee has multiple donors

6. We proposed to allow the Public Guardian, in case of suspected fraud, to disclose to a donor that his prospective donee is already a donee to multiple donors. We received clarifications as to why this was necessary. We respect an individual’s choice to choose persons they trust to be their donee. However, in certain circumstances, there may be concerns that a prospective donee who is a donee to multiple donors, may stand to gain should any or all of the donors lose their mental capacity. The proposed amendment allows the Public Guardian to protect donors by interviewing them to make sure they fully understand the implications of appointing a donee who has been appointed by multiple donors. Only the number of LPAs the prospective donee has been appointed as donee for will be disclosed. Other confidential details will not be disclosed. The donor retains the autonomy to appoint the prospective donee.

Technical comments

7. The draft Amendment Bill allows the Public Guardian to rectify or update any particulars or documents in the register if the need arises and there is no written objection within 30 days of notifying the person affected. We received feedback to shorten the time period of 30 days, and will consider it. We will also consider how to implement the feedback for typographical mistakes to be corrected immediately and the donor informed accordingly.  

8. The draft Amendment Bill allows the Public Guardian to send notices in different ways e.g. through post, email, fax etc. We received feedback that the provisions as worded could affect service in other areas of law e.g. court documents. We wish to clarify that this provision is not intended to replace the existing rules of Court on service of court documents. We will review how to make clear this distinction as we finalise the Amendment Bill.

(B) Feedback on possible additional amendments

9. We received feedback to consider additional amendments to the MCA, beyond the scope of the amendments we had proposed. These proposed additional amendments are set out below and we will study them further:

a. In cases where a donor appoints two donees jointly, a replacement donee may be allowed to replace either one of the two appointed donees should they no longer qualify. Our current practice is aligned with common law i.e. disqualification of one joint donee will terminate the joint doneeship. 

b. That a third party may require donees who are acting on behalf of a donor on personal welfare to furnish a certificate from a registered medical practitioner to state that the donor’s loss of capacity is likely to be permanent. Currently, this provision is only for donees who are acting on property and affairs.
 
c. That it be mandatory for donee(s) to notify the Public Guardian of their intention to exercise their authority before doing so, to better safeguard persons who lack mental capacity from abuse. 

d. To extend the coverage of whistle-blower protection for relevant persons such as lawyers and professional donees, beyond healthcare workers.

e. To explore ways to transit Committee of Persons/Estate (COP/E) that are governed under the now-repealed Mental Disorders and Treatment Act (MDTA), to the current Deputyship regime under the MCA so that such committees may be supervised by the Public Guardian, per the current requirements under the Deputyship regime.

10. A concern was raised that it may not be possible to furnish a medical report by a Singapore-based registered medical practitioner should a person who has lost mental capacity be residing overseas. It was suggested that the definition of ‘Registered Medical Practitioner’ in the MCA be expanded to include foreign doctors. We wish to clarify that today, the Courts may already determine if a medical report by a foreign doctor is permissible. Further, third parties who are transacting with a donee may also decide if a medical report from a foreign doctor is acceptable for purposes of the transaction between the third party and the donee.  

(C) Feedback on accessibility and cost concerns

11. There was feedback on the costs of making an LPA, namely on the expenses incurred in visiting an LPA CI. MSF does not prescribe the fees charged as this is a professional service carried out by the CIs. As at August 2020, the majority of the top 10 most visited accredited medical practitioners charged $60 or less, especially for senior citizens. For those who require some financial assistance to make an LPA, there are not-for-profit organisations who offer LPA certificate issuing services at subsidised rates. These include Life Point, Potter’s Place Community Services Society and Mount Alvernia Outreach Medical Clinic in Enabling Village. Members of the public can refer to OPG’s website at www.bit.ly/LPACertIssuers where there is information on the 10 most visited certificate issuers (of each profession) and not-for-profit organisations.

12. There was also feedback for OPG to assist healthcare professionals and providers to retrieve the LPA and donee(s)’ contact information in a timely and cost-efficient manner. Currently, healthcare practitioners may log in via SingPass to OPG’s e-services portal to make a search request. The search results will indicate if the patient has made an LPA, and the relevant details of the donee. Healthcare practitioners may highlight if the request is urgent by indicating in the request (under the “Reason for Request” field). On average, the search results will be available within 2 working days. Each search request costs $20. We are targeting to shorten the turnaround time for the search results with the new OPG-Online system.

Conclusion

13. MSF will study the concerns and suggestions raised as we finalise the amendments to the MCA. We would like to thank everyone who has participated in this consultation exercise. 

Ministry of Social and Family Development 
22 December 2020

 

Aim

1. The Ministry of Social and Family Development (MSF) is proposing to amend the Mental Capacity Act (“MCA”) to allow the digitalisation of Lasting Powers of Attorney (“LPA”) and deputyship reports, with the implementation of the Office of the Public Guardian Online (“OPGO”) electronic transaction system. There will also be amendments made to enhance protection of donors and those who lose mental capacity.

2. We invite you to provide feedback on the draft Mental Capacity (Amendment) Bill 2020. Your feedback will help us improve the clarity of the legislative amendments and ensure that the proposed changes help us serve Singaporeans better.

Background

3. The MCA establishes a legal instrument known as the LPA, which empowers individuals aged 21 years and above (called the “donor”) to appoint one or more persons whom they trust (called the “donee") to make decisions on their behalf, in the event they lose mental capacity. The MCA also enables individuals to apply to court to be appointed as “deputies” to act on behalf of persons who have lost mental capacity but have not made an LPA.

Scope of Proposed Amendments

(I) ENABLING DIGITALISATION 

4. We will be amending the MCA to allow the Public Guardian to establish an electronic transaction system (OPGO) which enables any person to make an LPA or carry out transactions with the Office of the Public Guardian (OPG) digitally.

(a) LPAs to be made conveniently online 

5. Today, as the LPA is executed in hardcopy, it requires wet-ink signatures, which are manually signed, and for seals to be physically affixed. The prospective donor has to print the LPA form from OPG’s website and fill in the relevant particulars of himself and the prospective donee(s), and pass the hardcopy form to the donees. Prospective donee(s) and replacement donee(s) (if any), will have to sign and seal the LPA and have their wet-ink signatures witnessed. The prospective donor then visits an LPA Certificate Issuer (CI) to execute the LPA. The CI signs using a wet-ink signature, (a) as witness of the donor’s signature and (b) provides the LPA certificate¹. Following this, the prospective donor submits the hardcopy LPA form to OPG. 

6. The proposed amendments enable the making of an LPA electronically as a deed without wet-ink signatures and without the need to affix physical seals². The requirement for the donees’ and replacement donees’ signatures to be witnessed will also be removed to simplify the process of making an LPA. This will allow the public to make LPAs conveniently, and reduce the number of steps to be taken. In recognition of the importance of an LPA, we have retained and put in place the following safeguards:

a. Signing by digital signatures³. Donors and CIs sign with digital signatures, using the National Digital Identity (NDI) credential. Donors will digitally sign the LPA as a deed. Donees and replacement donees need not use a digital signature and may accept their appointment through OPGO. All donors, donees and replacement donees will log in to OPGO using SingPass⁴. CIs will log in using CorpPass. 

b. Donor to attend in-person before the CI to sign the LPA. To ensure that the donor is not making an LPA under duress or undue influence and understands the effect of making an LPA, we have retained an important safeguard, which requires a donor to attend before a CI to execute his LPA. There is no change in the CI’s role to ensure that the donor understands the purpose of the LPA, the powers he is giving to his donees and is not under any compulsion to make the LPA. The CI will also witness the donor’s signature. 

(b) Enabling LPAs to be registered with greater ease

7. Currently, the prospective donor or donee(s) must compile and send the following documents by post to OPG: (a) the completed and signed LPA; (b) clear photocopies of the donors’, donees’ and replacement donees’ identification documents; and (c) the application to register the LPA and the application fee (if any). 

8. The proposed amendments enable LPAs to be made and registered electronically using the OPGO. After the CI has witnessed the donor’s execution of the LPA and signed the LPA Certificate, the donor can submit the application to register the LPA electronically. 

(c) Ensuring accuracy of registered LPAs for confident transactions with third parties

9. For LPAs submitted for registration prior to 1 August 2019, the registered hardcopy LPAs were returned to the applicant who submitted the LPA. Since 1 August 2019, the hardcopy LPA instrument is retained by OPG unless the applicant requests its return. The hardcopy LPA instrument is scanned, and the scanned copy is registered. Donors and donees may access the softcopy registered LPA instrument via the existing OPG e-services portal.  

10. If the amendments are passed in Parliament, OPG will return any hardcopy LPA or instruments in its possession to the respective donors. Existing donors of a non-electronic LPA will have 30 days to notify the Public Guardian of any error found in the electronic copy of the LPA kept in OPGO. If a donor does not notify the Public Guardian, the donor’s electronic copy of the LPA will be treated as the LPA after the 30-day period. OPG will notify all existing donors by post to login to OPGO when the system is operational to check the electronic copies of their LPAs. 

11. If the LPA is updated, for example, a donee’s power is terminated as a result of any event mentioned in Section 15 of the MCA⁵, a note will be electronically attached to the electronic copy of the registered LPA only. 

12. Anyone (e.g. a third party) transacting with a donee should ask for a copy of the LPA that is kept by OPG, as this would be the most up-to-date version. OPG will send a copy of the registered LPA to the third party if a donee makes a request for it. Such requests will be made using the OPGO.

13. A proposed amendment will also provide that in the event of any inconsistencies between a hardcopy registered LPA and the electronic copy of the registered LPA, the electronic version kept by OPG will prevail. 

(d) Online Deputy reports 

14. A deputy must submit annual reports of the decisions made on behalf of, and the expenses incurred for the person who lacks capacity for whom the deputy is appointed (or “P”). These reports are submitted to the Public Guardian, who supervises deputies. 

15. With OPGO, all deputies will complete and submit their annual reports through the OPGO. Newly-appointed deputies will have to log in to OPGO to follow up on their specific obligations under their court order. The deputies will be required to complete the key tasks listed in OPGO by specified deadlines and these will be tracked by OPGO under the "To Do List" and "Significant Decisions List". OPGO will also include training videos and digital resources to help new deputies familiarise themselves with their roles and responsibilities.

16. Digital filing of deputy reports will also remove the need for deputies to submit hardcopy statements and manually compile their report and supporting documents. Deputies will experience greater convenience as there will be online guidance on how to fill out and submit their deputy report.  There will also be an auto-calculation function to assist with tabulation of sum totals for financial figures. Subsequent annual reports will be pre-filled with the previous year’s information so that deputies need not start from scratch when they complete the current year’s report. 

17. Deputies will be required to log in to OPGO using SingPass to file their reports. This makes the report filing process secure and ensures proper submission of records.

(e) Notifications from the Public Guardian by way of SMS or email 

18. Currently, notifications from the Public Guardian to donors, donees, replacement donees, and deputies are sent via post.  

19. Where consent has been given by the donor, donees, replacement donees, deputies and authorised persons (collectively referred to as the recipients), the proposed amendment will allow the Public Guardian to send a SMS or email to inform the recipients to check their OPGO account. Consent will be sought when the recipients log in to the OPGO using SingPass / CorpPass. Mobile number details will be obtained from system linkages between OPGO and SingPass / CorpPass. Recipients may need to provide their email address if they do not have a local mobile number or if they prefer to be notified by email.  

20. There are certain notices that require a response or an action by the recipient. For such notices, the Public Guardian will not inform the recipient to check their OPGO account via SMS. Instead, the Public Guardian will inform recipients via email or post.   

(II) AFFORDING BETTER PROTECTION OF DONORS 

21. Apart from making the LPA and deputyship processes more convenient through digitalisation, the proposed amendments will also enhance safeguards to better protect donors.

(a) Allowing the Public Guardian to disclose information of prospective donees to donors if there is suspicion of fraud 

22. If there are grounds to suspect that fraud or undue pressure was used to induce a donor to make an LPA or appoint a particular person to be his/her donee, the proposed amendment will allow the Public Guardian to interview the donor, and inform the donor that his prospective donee is already a donee to several other donors. The Public Guardian may also take other actions as part of her supervisory and investigative functions, such as applying to Court to determine if the LPA should be registered. This amendment will not apply retrospectively to LPAs registered prior to these amendments. 

(b) Instantaneous notifications 

23. If a donor makes an LPA electronically, OPG is able to send instantaneous SMS or email notifications to all parties (donor, donee, replacement donee) during the process. This allows all parties to be kept informed in real-time, so that they can alert⁶ OPG if there are any issues. 

Ensuring full support and access by the public to the digital transformation 

24. For the public to gain the full benefits of the digital transformation of the LPA process, the proposed amendments will allow manual submissions only in exceptional situations, e.g. when there is a severe system malfunction of OPGO, or if a donor or donee is unable to make an LPA electronically due to severe disability.
 
25. OPG is working with the People’s Association, the Infocomm Media Development Authority and the Council for Third Age to leverage community touchpoints such as Citizen Connect Centres (CCCs), the Integrated Public Service Centre (IPSC) at Our Tampines Hub, and various events and roadshows, to ensure that assistance will be provided for users who need help with the digital processes. PA’s CCCs are equipped with internet-enabled devices and staff to assist citizens to perform Government transactions online. The staff at the CCCs and IPSC will be trained to assist the elderly and other persons who may have difficulties using the OPGO, to make their LPAs electronically and access LPA-related transactions. OPG will engage other social service agencies and conduct training sessions on how to make an LPA online. Help will also be rendered at OPG’s premises.

LPA Form 2 

26. Most donors use an LPA Form 1. However, donors who wish to grant specific and customised powers to their donees would need to use an LPA Form 2. The LPA Form 2 must be drafted by a lawyer. In 2016, we removed the need for the Public Guardian to vet clauses in the LPA Form 2. Donors thus have the autonomy to engage lawyers to draft customised terms relating to the power, appointment and/or replacement of a donee. 

27. Today, the Public Guardian is required to attach a note that states if an event has occurred as well as the effect of such an event. Such events (as prescribed in Section 15 of the MCA) include the disclaimer of the appointment by the donee; the death of the donee; the bankruptcy of the donee (in so far as his authority relates to property and affairs); the dissolution of annulment of a marriage between the donor and donee; or the lack of capacity of the donee.  Since donors have the full autonomy to customise clauses in LPA Form 2, which are  drafted by their lawyers, it follows that the Public Guardian is not in a position to advise the donor, donee or any third party on the legal effect of any event on a LPA Form 2.  As such, the proposed amendment will require Public Guardian to state only the occurrence of the event (but not its effect) in a note to be attached to an LPA Form 2. The LPA Form 2 will be revised such that lawyers would have to state clearly in the instrument, the events that would result in the revocation of an LPA, termination of the appointment of a donee or replacement of a donee.

Period of Consultation and Guidelines

28. We would appreciate your participation to provide feedback on the proposed amendments. Respondents are requested to observe these guidelines:

a. Please identify yourself and/or your organization so that we may follow up with you to clarify your comments if needed; 

b. Please use the template provided; 

c. As far as possible, please explain your points with examples, illustrations or alternative formulations of the proposed amendments; and

d. Do keep your comments clear and concise. 

29. Please note that this draft legislation is released only for the purpose of consultation and does not represent the final legislation.

30. The draft Mental Capacity (Amendment) Bill 2020 is available for public consultation from 28 October 2020 to 18 November 2020. We regret that comments received after 18 November 2020 will not be considered.

Feedback Channel

31. You are invited to email your feedback to consultations@msf.gov.sg using the prescribed template.

Summary of Response

32. A summary of the main comments received, and the Ministry’s responses will be published on the REACH portal and MSF’s website, by end December 2020. The identity of respondents will not be disclosed.

Documents to Download

33. For reference, please download the relevant documents for this public consultation below.
 
34. The MCA can be accessed at https://sso.agc.gov.sg/Act/MCA2008.

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¹When completing an LPA Form, the prospective donor must visit an LPA CI who will sign on the LPA Form as a witness for the donor, to certify that (i) the donor understands the purpose of the LPA and the scope of authority granted to donees, and (ii) no fraud or undue pressure is being used to induce the donor to create an LPA. LPA CIs may belong to one of the following professions in Singapore: (i) a medical practitioner accredited by the Public Guardian, (ii) a practising lawyer, or (iii) a registered psychiatrist.

²Amendments will be also be made to the First Schedule to the Electronic Transactions Act (ETA) to remove LPAs from the Exclusion List therein so that with respect to LPAs, electronic signatures can have the same legal effect and validity as wet-ink signatures if specified conditions are met.

³The digital signature is a secure electronic signature that would prevent any alteration of the instrument after the donor or CI signs it and protect the integrity of the instrument.

⁴If the donee is a licensed trust company, the authorised representative would log in using CorpPass.

⁵For example, the disclaimer of the appointment by the donee or the lack of capacity of the donee.