PUBLIC CONSULTATION ON DRAFT MENTAL CAPACITY (AMENDMENT) BILL 2015

1. The Ministry of Social and Family Development (MSF) sought feedback from the public on the proposed amendments to the Mental Capacity Act from 7 December to 28 December 2015. We received 24 feedback inputs from various individuals and organisations, including the Association of Banks in Singapore, the Law Society of Singapore and Life Insurance Association Singapore. MSF would like to thank everyone who had taken the time to send in their views.
   
   
2. There was general support for the proposed amendments, with several calling the changes timely and appropriate in enhancing protection of mentally incapacitated persons. The main issues raised in the public consultation and our responses are detailed below.

Introduce professional donees and professional deputies


3. There was support for introducing professional donees and professional deputies in view of rising singlehood and increased numbers of elderly living alone. Contributors however emphasised that family should remain as the first line of support and care, with the professionals coming in only if family members were unwilling, unable or unavailable.
   
   
4. Some contributors questioned if professional donees and deputies may cause financial strain on the person without mental capacity. They suggested safeguards, such as a stipulated fee structure or required appointment of at least two professional donees or deputies. One contributor suggested allowing only persons with integrity or with necessary training to be registered as professional deputies. MSF agrees that safeguards are needed to protect the interests of people without mental capacity. As with all deputies today, the Family Justice Courts will appoint the professional deputies on terms as the Court deems fit for each case. Once appointed by the Court, the professional deputy will be supervised by the Office of Public Guardian (OPG). We will monitor the professional doneeship and deputyship sector to assess the need for additional regulations, and look into developing non-profit options for those who cannot afford such services.
   
   
5. There was support for the suggestion that donees and deputies who are family members should act without remuneration. At the same time, it was also asked if family members who give up their jobs to care for their loved ones and assume the role of deputy should be allowed to seek remuneration to cover their living expenses. The Government recognises the challenges caregivers face and has put in place various caregiver support schemes. These include financial support through the Foreign Domestic Worker Grant and Pioneer Generation Disability Assistance Scheme. Family members can also seek reimbursement for expenses incurred, such as transport and medical expenses.
6. There was a suggestion to allow nursing homes and other Voluntary Welfare Organisations (VWOs) to act as professional deputies for their clients, as they would often already be familiar with the needs and preferences of the person without mental capacity. The contributor also suggested that these organisations be allowed to act as professional deputies in both property and affairs (PA) matters and personal welfare (PW) matters. MSF agrees that these organisations should be allowed to act as professional deputies for PA matters, so long as they meet the registration requirements and are successfully appointed by the Court to act for their client. However, as PW decisions are often highly personal, it might not be appropriate for organisations (as opposed to individuals) to make such decisions. Nonetheless, staff of the organisation are considered individuals and can register themselves to be professional deputies and apply to act as PW deputy. This arrangement is possible under the proposed amendments.
   
   Revise the grounds in which an LPA or deputyship order can be revoked by the Court and allow the Court to temporarily suspend a donee’s or deputy’s powers in the absence of a pending Court application
   
   
7. Contributors supported the proposed amendments. Some banks and insurance companies made operational suggestions such as having clear and timely notification of a suspension or revocation of a donee’s or deputy’s powers. MSF will take these operational concerns into consideration.
   
   Other Feedback
   
   i. Enhanced protection for mentally incapacitated persons
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8. Some contributors suggested imposing more conditions, such as restricting certificate issuers to specialists from the Institute of Mental Health (IMH) as well as donees to only Singaporeans and those related to the donor, when making a Lasting Power of Attorney (LPA) to prevent any undue influence. MSF is mindful of the need to strike a balance between having adequate safeguards and keeping the LPA accessible while allowing people with mental capacity to appoint a donee of his choice. Having additional conditions may increase costs and limit the choice of donees for some donors. Nonetheless, the Office of the Public Guardian (OPG) is stepping up on its public education efforts to encourage individuals to choose their donees wisely.
   
   ii. Support for families caring for mentally incapacitated individuals.
   
   
9. Some contributors queried if the deputyship application process could be made easier and less costly for families caring for mentally incapacitated persons. This is particularly so when family members are in agreement on whom should be appointed deputy. There were also suggestions for the Mental Capacity Act to be amended to allow the parent(s) of adult children with severe intellectual disabilities to be appointed as natural deputies without going through the Court process, or by removing the requirement for a medical report. MSF has considered this suggestion. As deputyship is a very significant decision, a judiciary body (i.e. the Family Justice Courts) must evaluate if the proposed deputy is suitable to act in the long-term, even if it is the parent. To make the Court process simpler for straightforward cases, we are working with the Family Justice Courts to simplify the application forms and have user-friendly online services. We are also working with the Courts and the Movement for the Intellectually Disabled in Singapore (MINDS) to help parents of MINDS students apply for deputyship on their own at a lower cost.

Aim


1. The Ministry of Social and Family Development (MSF) invites the public to give feedback on the draft Mental Capacity (Amendment) Bill.
   
   Background
   
   
2. The Mental Capacity Act was enacted in 2008 to put in place a legal framework for proxy decision-making that safeguards the interests of individuals who lack mental capacity. The framework creates a statutory mechanism called the Lasting Power of Attorney (LPA), which allows individuals to appoint another person to make decisions on their behalf in the event that they lose mental capacity in future (i.e. a “donee”). For those who have already lost mental capacity, the Court may appoint a deputy to act on their behalf. To guard against abuse of persons who lack mental capacity by their proxy decision-makers, the Public Guardian is tasked to supervise deputies and investigate complaints pertaining to the exercise of donees’ and deputies’ powers. Ill-treatment of a mentally incapacitated person is also a criminal offence under the Act.
   
   
3. The Mental Capacity Act has been in operation for the past 5 years.  MSF has received useful feedback from members of the public, donors, donees and members of the Public Guardian Board on how the provisions can be refined to better serve and protect the dignity and interests of individuals who lack mental capacity.

Scope of Proposed Amendments


4. To better serve Singaporeans now and in the future, MSF proposes to amend the Mental Capacity Act. Key amendments include the following: 
   
   1. Introduce professional donees and professional deputies;
   2. Revise the grounds in which an LPA or deputyship order can be revoked by the Court; and
   3. Allow the Court to temporarily suspend a donee’s or deputy’s powers in the absence of a pending Court application.
      
      
   (I) Introduce professional donees and professional deputies


5. The Mental Capacity Act currently allows individuals and organisations unrelated to the person without capacity to be appointed as donees and deputies of that person. These individuals and organisations may wish to be remunerated for their services[1].


6. With rising singlehood and increasing numbers of elderly living alone, the number of individuals with no family members able and willing to be their deputies or donees is expected to increase. This may result in a greater demand for fee-based doneeship / deputyship services. To safeguard the interests of individuals who have already lost mental capacity (and therefore cannot choose their proxy decision-maker), any person intending to provide such services to these individuals for remuneration must first register with the Public Guardian before they can do so.
   
   (II) Revise the grounds in which an LPA or deputyship order can be revoked by the Court


7. The Act currently allows for the Court to revoke an LPA if: (i) fraud or undue pressure was used in the making of the LPA; or (ii) the donee has or proposes to behave in a way that contravenes his authority or is not in the donor’s best interests. The Court may also revoke the appointment of a deputy if scenario (ii) is proven.


8. The proposed amendment empowers the Court to revoke an LPA or deputyship order where the donee or deputy is clearly not suitable to continue acting in his role and there may be a real risk of him abusing his authority. For example, where the donee or deputy has been convicted of criminal breach of trust.

(III) Allow the Court to temporarily suspend a donee’s or deputy’s powers in the absence of a pending Court application

9. Currently, the Mental Capacity Act allows the Court to make interim orders concerning a person whom it believes lacks mental capacity, if it is in his best interests to do so without delay. This is only possible if an earlier application has been made e.g. to remove a deputy/donee. However, urgent temporary orders may be required, even before an application to remove a deputy/donee has been made.


10. The proposed amendment allows the Court to temporarily suspend a donee’s or deputy’s powers in the absence of a pending Court application, so as to give the Public Guardian time to gather evidence for an investigation and, in the meantime, safeguard the interests of the mentally incapacitated person.

Non-Legislative Initiatives


11. In the course of preparing the proposed amendments to the Mental Capacity Act, MSF has received some suggestions from the public and stakeholders that do not require changes in legislation. MSF will be addressing these through non-legislative measures, including:
    
    
    1. Simplifying the deputyship application process for certain groups of individuals, such as children born with severe intellectual disability – MSF is collaborating with the Family Justice Courts and the Movement for the Intellectually Disabled in Singapore (MINDS) on a pilot project that makes it easier for parents of MINDS students to obtain a Deputyship order from the Court.
    
    
    2. Providing options for mentally incapacitated individuals who do not have anyone willing or able to be their Deputy – MSF is addressing this issue by forming a Panel of Deputies to cater to mentally incapacitated individuals who have modest assets but do not have any relatives or friends willing or able to be their Deputy[2].
    
    
    3. Tightening the LPA-making process in order to protect vulnerable seniors from undue influence and financial exploitation – It is important to strike a balance between introducing more safeguards and ensuring the LPA process is accessible and convenient to Singaporeans. To encourage individuals to choose their donee(s) wisely, the Office of the Public Guardian (OPG) has stepped up efforts to help donors understand the implications of making an LPA and the importance of choosing the right donee[3]. An advisory has been added into the Information Sheet (distributed with LPA Forms) to remind donors to be mindful of appointing a trusted donee and to consider informing family members of their intention to register an LPA. To assist certificate issuers to undertake their roles more effectively, OPG has been working with relevant professionals to fine-tune the existing information and accreditation materials.

References


12. Please refer to the draft Mental Capacity (Amendment) Bill and list of definitions.

Feedback


13. MSF welcomes views and comments on the above proposal. The public is invited to email their feedback to consultations@msf.gov.sg by 2359 hours, 28 December 2015.

[1] The amount of remuneration a donee charges would depend on his private arrangement with the person who appointed him (i.e. the donor). On the other hand, a deputy can only charge an amount that has been approved by the Court.

[2] The Panel comprises several public-spirited individuals willing to apply to the Court to be appointed as Deputies for these needy individuals. The arrangement is in the pilot phase.

[3] For instance, OPG has shifted the focus of its public education talks and workshops to focus on the implications of making an LPA and the importance of choosing the right donee(s), as well as helping donees understand their roles and responsibilities.