Probate & Succession Planning - Mental Capacity Act 2008 PDF

Probate & Succession Planning Mental Capacity Act 2008 Originally prepared by Caroline Bava; Updated by Alvin Lim (2024) Topics 1. Introduction to the Mental Capacity Act 2008 (“MCA”) 2. Lasting Power Of Attorney 3. Ap...

Probate & Succession Planning Mental Capacity Act 2008 Originally prepared by Caroline Bava; Updated by Alvin Lim (2024) Topics 1. Introduction to the Mental Capacity Act 2008 (“MCA”) 2. Lasting Power Of Attorney 3. Appointment Of Deputies 4. Public Guardian 2 1. Introduction to the MCA 3 OVERVIEW 1. General Principles (Section 3 MCA) 2. Lack of Capacity (Sections 4 & 5 MCA) 3. Best Interests (Section 6 MCA) 4 GENERAL PRINCIPLES Section 3, MCA Section 3(2) Assume person has capacity Section 3(3) Take all practical steps to help person make a decision Section 3(4) Unwise decision does not equate to lack of capacity Decision made for or on behalf of a person lacking capacity Section 3(5) must be in person’s best interests & 3(6) Regard must be had to whether the purpose for which act / decision is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action 5 LACK OF CAPACITY Sections 4 & 5, MCA A person lacks capacity in relation to a matter if at the material time he Section is unable to make a decision for himself in relation to the matter 4(1) because of an impairment of, or a disturbance in the functioning of, the mind or brain. A person is unable to make a decision for himself if he is unable to: - 1. Understand the information relevant to the decision; Section 2. Retain that information; 5(1) 3. Use or Weigh that information; or 4. Communicate his decision (e.g. talking, sign language) 6  LACK OF CAPACITY Sections 4 & 5, MCA It does not matter whether the impairment or disturbance Section 4(2) is temporary or permanent Not established merely by (a) age or appearance, or (b) Section 4(3) condition or aspect of behavior which leads to unjustified assumptions 7 LACK OF CAPACITY Sections 4 & 5, MCA The test for the lack of mental capacity is time-specific and decision- specific – i.e. in relation to a specific matter, at the material time; not a “blunt, all-or-nothing” test (referred to in Re BKR SGHC 201 ) 1. Time-specific a. Recall Section 4(2) – may be temporary or permanent b. Person may have good days and bad days 2. Decision-specific a. Unable to make a decision in relation to the matter b. Person may have mental capacity to make some decisions, not all Standard of proof: Balance of Probabilities (Section 4(4)) 8 LACK OF CAPACITY Re BKR SGCA 26 1. Functional A functional inability to make a decision in relation to a Component specific matter at the material time 2. Clinical Involves impairment of the mind Component There must be a causal connection between the impairment of the mind and the inability to make decisions 3. Causal connection a. “But-for” causation sufficient b. No need to be sole cause – Inability to make decisions can be due to a product of a number of effective causes (e.g. undue influence), but suffices if mental impairment is one of those causes 9 LACK OF CAPACITY Practical Tips 1. To avoid doubt, solicitor may ask for a medical report / certificate from a doctor certifying that the person has mental capacity to make the decision in question ◆ The Court of Appeal ruled that courts must take into account a person’s actual circumstances in assessing his mental capacity under the MCA. As a matter of prudence, the solicitor should not rely totally on medical report / certificate, but should also have sight of the person to satisfy himself / herself of the person’s mental capacity – especially if solicitor is Certificate Issuer for Lasting Power of Attorney. Read the Court of Appeal’s decision. 2. Take detailed attendance notes 10  BEST INTERESTS Section 6, MCA If a person (“P”) lacks capacity, how does a person determine if something is in P’s “best interests”? Determination cannot be made on the basis of P’s (a) age or Section 6(1) appearance, or (b) condition or aspect of behavior which leads to unjustified assumptions Person making determination must consider all relevant Section 6(2) circumstances and take steps set out in Sections 6(3) – 6(9) “relevant circumstances” are those (a) of which the person Section 6(12) making the determination is aware and (b) which it would be reasonable to regard as relevant 11  BEST INTERESTS Section 6, MCA Considerations in Sections 6(3) – 6(9) Section 6(3) (a) Whether it is likely that P will at some time have capacity; and Future Capacity (b) If it appears likely that P will, when that is likely to be Person making the determination must, so far as is reasonably Section 6(4) practicable, permit and encourage P to participate, or to improve Encourage his ability to participate, as fully as possible in any act done for participation him and any decision affecting him 12  BEST INTERESTS Section 6, MCA Considerations in Sections 6(3) – 6(9) Section 6(5) Where the determination relates to life-sustaining treatment, Life-sustaining person making the determination must not be motivated by a treatment desire to bring about P’s death Where the determination relates to the giving, refusal or revocation Section 6(6) of appropriate consent of P under the Human Biomedical Research Human Act 2015 (HBRA) or relating to a clinical trial, the person making the Biomedical determination must take into account such matters, Research Act / considerations and procedures as may be prescribed in the clinical trials HBRA or written law 13  BEST INTERESTS Section 6, MCA Considerations in Sections 6(3) – 6(9) Where the determination relates to the disposition or settlement of Section 6(7) the person’s property, person making determination must be Disposition of motivated by a desire to ensure, so far as is reasonably practicable, property that P’s property is preserved for application towards the costs of the P’s maintenance during P’s life 14  BEST INTERESTS Section 6, MCA Considerations in Sections 6(3) – 6(9) (a) P’s past and present wishes and feelings (and any relevant Section 6(8) written statement made by P when he had capacity) P’s subjective (b) P’s beliefs and values that would likely influence his decision views (c) Other factors that P would likely consider (a) Anyone named by P as someone to be consulted on the matter in question or on matters of that kind Section 6(9) (b) Anyone engaged in caring for P or interested in his welfare Others’ views (c) Any donee of a lasting power of attorney granted by P or deputy appointed by the Court 15 BEST INTERESTS Section 6, MCA NOTE: Section 6(11) MCA: In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (9)) the person reasonably believes that what the person does or decides is in the best interests of the person concerned. Please also see Chapter 6 of the Code of Practice which provides a guide, factors and examples to be considered in determining what is in the best interests of a person lacking capacity to make a specific decision at a particular time. 16 2. Lasting Power of Attorney (“LPA”) 17 OVERVIEW 1. Introduction a. The Donor b. The Donees – Powers, restrictions & duties c. Certificate Issuers 2. Procedure 3. Revocation of LPA 18 LPA Introduction – Section 11, MCA An LPA is a power of attorney under which the donor (“P”) confers on the donee (or donees) authority to make decisions about all or any of the following: - (a) P’s personal welfare or specified matters concerning P’s personal welfare; (b) P’s property and affairs or specified matters concerning P’s property and affairs, when P no longer has capacity to make such decisions. 19 LPA The Donor – Who can create an LPA? Section 11(2) The donor (“P”) can only create a valid LPA if: - (a) Section 12 is complied with (i.e. Appointment of Donees); (b) An instrument conferring authority of the kind mentioned in subsection (1) is made and registered in accordance with the First Schedule (i.e. LPA Form 1 & Form 2); and (c) At the time when P executes the instrument, P has attained the age of 21 years and has capacity to execute it. * RECALL: Sections 4 & 5, MCA – Test for capacity 20 LPA Form 1 1. Prescribed format that can be self- filled by donors 2. For individuals with straightforward requirements and who wish to grant general LPA powers to their donee(s) 3. Only basic conditions / restrictions may be attached to the general powers – exhaustive checklist prescribed in Form 1 21 LPA Form 2 1. Prescribed format that contains text- free spaces for contents to be drafted by solicitors 2. For individuals with more detailed requirements and who wish to grant specific LPA powers to their donee(s) 22 LPA Mode of submission 1. Default: online submission via the Office of the Public Guardian Online (“OPGO”) system. Singpass is required. 2. Exception: hardcopy submission if it falls within certain exceptional situations (Section 11(2A), MCA): a. the donor is unable to make the instrument using the electronic transaction system due to the donor’s physical disability or other circumstance; b. the donee is unable to sign the instrument using the electronic transaction system due to the donee’s physical disability or other circumstance; c. the electronic transaction system is unavailable; d. any other prescribed circumstances. 23 LPA Mode of submission 24 LPA The Donee(s) – Who can be one? Section 12(1), MCA: (a) where the power relates only to P’s property and affairs – (i) an individual who has attained the age of 21 years and provides to P the services of a donee without remuneration; (ii) an individual who is a professional donee and is not related to P by blood or marriage; or (iii) a professional donee who is not an individual; and (b) in any other case – (i) an individual who has attained the age of 21 years and provides to P the services of a donee without remuneration; and (ii) an individual who is a professional donee and is not related to P by blood or marriage. Section 12(2), MCA: A person who is an undischarged bankrupt may not be appointed as donee of a lasting power of attorney in relation to P’s property and affairs. 25  LPA The Donee(s) – How many may there be? Section There may be more than one donee. 12(3) Form 1: Maximum 2 Donees and 1 Replacement Donee Number of Form 2: No Limit Donees 26  LPA The Donee(s) – How many may there be? If there is more than one donee, the LPA may appoint the donees to act: - 1. Jointly – i.e. act together and not separately. Failure by one to meet requirements / comply with formalities prevents the LPA from being created (Section 12(6) MCA) If one of the donees dies / lacks capacity / becomes bankrupt / disclaims the Section 12(4) & appointment, this terminates the donee’s appointment and revokes the power (5) (Section 15(4) subject to Section 15(6) MCA) Section 15(5) to 2. Jointly and severally – i.e. act together or separately. (7) Failure by one to meet requirements / comply with formalities will not prevent LPA Jointly and/or from being created for other donees who comply (Section 12(7) MCA) Severally If one of the donees dies / lacks capacity / becomes bankrupt / disclaims the appointment, does not terminate the appointment of the other donee (Section 15(6)(b) MCA) 3. Jointly in respect of some matter and severally in respect of others. If the LPA does not specify whether they are to act jointly or jointly and severally, the LPA is assumed to appoint them to act jointly (Section 12(5) MCA) 27 LPA The Donee(s) – Powers & Restrictions Section 11(4), MCA: The authority conferred by a lasting power of attorney is subject to — (a) the provisions of this Act and, in particular, sections 3 (principles) and 6 (best interests); and (b) any conditions or restrictions specified in the instrument. Sections Restrictions. 13 & 14 Section Excluded decisions (applicable across the board under MCA; not only 26 in relation to LPA) 28  LPA The Donee(s) – Powers Personal Welfare Property & Affairs Code of Practice, Section 8.4 Code of Practice, Section 8.3 Dealing with property (subject to restrictions under Where P will live LPA) Who P will live with Opening, closing & operating bank accounts Day-to-day care decisions (e.g. what P will Making payments for general expenses (e.g. eat, drink, wear) household, medical expenses; rent; loans) What social activities to take part in Receiving payments due to P (e.g. dividends, Handling P’s correspondence income, other financial entitlements) Who P may have contact with Handling tax matters Purchasing vehicles or other equipment LPA The Donee(s) – Restrictions Section A donee must not make a decision on behalf of P if the donee knows, or has 13(1) reasonable grounds to believe, that P has the capacity to make the decision. 30  LPA The Donee(s) – Restrictions Personal Welfare Property & Affairs Sections 13(2)-(8), MCA Sections 13(9)-(9A) & 14, MCA Cannot make decisions on life- If prohibited by Form 1, cannot sell sustaining treatment / treatment property without court order preventing a serious deterioration in Cannot execute will for donor condition Cannot execute or revoke CPF Cannot do any act to restrain donor memorandum, CPF / insurance (unless donee has authority to do nomination so, it is necessary to prevent harm Cannot make cash gifts (unless expressly to donor and it is a proportionate authorised in LPA) (note: Section 14(3), response) MCA) See also: Code of Practice (MCA), Section 8.6 LPA The Donee(s) – Other Excluded Decisions* * These excluded decisions apply across the board under the MCA, not just to LPAs  LPA The Donee(s) – Duties Code of Practice, Section 8.5 Follow the statutory principles Not to pass on their authority to someone else Act in P’s best interests (Section 6, MCA) Act in good faith Have regard to the guidance in the Code of Respect confidentiality Practice Follow any directions from the Court Carry out P’s instructions and make Keep accounts decisions within the scope of authority Keep the money and property of P separate from stated in the LPA the donees’ Carry out duties with reasonable care and Not give up the role without telling P (if P has skill capacity) and the Public Guardian Not to take advantage of their position and Inform the Public Guardian of any change of not benefit themselves, but to benefit P contact details and certain circumstances 33 LPA The Certificate Issuer 1. Role: Assess and certify that donor understands the purpose of the LPA and scope of authority conferred upon the donee(s) 2. Persons who may issue certificates (Reg 7(1), Mental Capacity Regulations 2010 (“MCR”)): - 1. Psychiatrists registered under the Medical Registration Act (Cap 174) 2. Medical practitioners accredited by OPG to issue certificates 3. Advocates & solicitors of the Supreme Court with a practicing certificate & qualified to practice Singapore law in a Singapore practice 34  LPA The Certificate Issuer Persons disqualified to issue certificates (Reg 7(2), MCR): - Family member of donor / NOTE: donee(s) Family member (Reg 2, MCR): - Donee(s) in the LPA or any other (a) a spouse of the person; registered LPA previously (b) a child of the person, including an adopted child and executed by donor a stepchild; Director, employee of licensed (c) a father or mother of the person; trust company acting as donee (d) a father in law or mother in law of the person; Business partner or employee of (e) a brother or sister of the person; or donor or donee(s) (f) any other individual who is related by blood or Owner, director, manager, marriage and who is living in the same household as the employee (or their family person members) of care facility where ‘Donees’ also includes replacement donees donor lives or is cared for, or their 35 family member  LPA The Certificate Issuer – Duties Para 2(e), Part 1 of First Schedule to MCA: - A certificate issuer must certify that, at the time when the donor executes the instrument: - 1. The donor understands the purpose of the instrument and the scope of the authority conferred under it; 2. No fraud or undue pressure is being used to induce the donor to create a lasting power of attorney; and 3. There is nothing else which would prevent a lasting power of attorney from being created by the instrument. 36  LPA The Certificate Issuer – Duties Law Society of Singapore v Sum Chong Mun 4 SLR 707 A solicitor who issues an LPA certificate must take reasonable care to advise and ensure that the donor understands the implications of his actions: - 1. Should only certify after meeting the donor, explaining the legal effect of the LPA, and satisfying himself / herself that the donor has mental capacity before witnessing the donor’s signature on the LPA 2. When in doubt, refer the donor to a psychiatrist 3. Should not rely on third parties to discharge duties a. N/B: A solicitor who falsely attests to the signature of a person on a consent document commits a disciplinary offence even if s/he was certain that the document was signed by that person b. Risk of being cross-examined if a dispute arises 37 LPA Procedure – electronic copy through OPGO system 1. Documents 2. Issue Certificate 3. Registration of LPA 1. LPA Form 1 i. The donor is able to login to the OPGO system via Singpass, complete the fields prescribed in the form and notify his donee(s)/ replacement donees through the OPGO system. ii. The donee(s)/ replacement donees may then accept their appointment(s) on the OPGO system via Singpass. 38 LPA Procedure – electronic copy through OPGO system 1. Documents 2. Issue Certificate 3. Registration of LPA 1. LPA Form 2 i. The donor should first consult with his solicitors. ii. With the donor’s instructions, the donor’s solicitors will be able to prepare a draft of the LPA Form 2 on the OPGO system. iii. The donor will need to login to the OPGO system via Singpass, review and confirm the contents of the draft, and notify his donee(s)/ replacement donees through the OPGO system. iv. The donee(s)/ replacement donees may then accept their appointment(s) on the OPGO system via Singpass. 39  LPA Procedure – electronic copy through OPGO system 1. Documents 2. Issue Certificate 3. Registration of LPA 1. If solicitor is certificate issuer, to meet with donor to ensure that donor has capacity, and take reasonable care to advise and ensure that the donor understands the implications of his actions 2. To verify identity of donor 3. Certificate issuer to sign digitally through the OPGO system 40  LPA Procedure – electronic copy through OPGO system 1. Documents 2. Issue Certificate 3. Registration of LPA 1. Office of the Public Guardian to notify donor to make payment of registration fee (if required): - LPA Form 1 LPA Form 2 $0 Singapore Citizens $185 (fee of S$70 waived until 31 March 2026) Singapore PRs $90 $230 Foreigners $230 $275 41  LPA Procedure – electronic copy through OPGO system 1. Documents 2. Issue Certificate 3. Registration of LPA 2. Mandatory waiting period of 3 weeks (beginning from the last date that the Office of the Public Guardian notifies the donee(s) that the LPA has been accepted for registration). 3. If no valid objections are received during this time, the LPA will be registered. 4. An LPA application may be withdrawn any time before it is registered. 42 LPA Procedure – hardcopies 1. Documents 2. Issue Certificate 3. Registration of LPA 1. LPA Form 1 or LPA Form 2 a. (Form 2) The donor should first consult with his solicitors. Donor’s solicitors to prepare a draft of the LPA Form 2 in accordance with the donor’s instructions. b. Ensure that all boxes are checked and donor has signed on every page c. Donor & donees’ signatures may be witnessed by a person above the age of 21 (need not be Certificate Issuer), and who is not the donor or the other donee(s) d. Donee(s) and donor may sign on different days, but donee must not sign later than donor 2. NRIC/ Passport of donor and all donees (copies) 43  LPA Procedure – hardcopies 1. Documents 2. Issue Certificate 3. Registration of LPA 1. If solicitor is certificate issuer, to meet with donor to ensure that donor has capacity, and take reasonable care to advise and ensure that the donor understands the implications of his actions 2. To verify identity of donor 3. Certificate issuer to sign and affix professional stamp on relevant page 44  LPA Procedure – hardcopies 1. Documents 2. Issue Certificate 3. Registration of LPA 1. All documents to be delivered to the Office of the Public Guardian within 6 months of signing for registration 2. Office of the Public Guardian to notify donor to make payment of registration fee (if required): - LPA Form 1 LPA Form 2 $0 Singapore Citizens $185 (fee of S$70 waived until 31 March 2026) Singapore PRs $90 $230 Foreigners $230 $275 45  LPA Procedure – hardcopies 1. Documents 2. Issue Certificate 3. Registration of LPA 2. Mandatory waiting period of 3 weeks (beginning from the last date that the Office of the Public Guardian notifies the donee(s) that the LPA has been accepted for registration. 3. If no valid objections are received during this time, the LPA will be registered. 4. An LPA application may be withdrawn any time before it is registered. 46  LPA Revocation & Termination of Donees’ Appointment Voluntary Section 15(2), MCA 1. When donor has mental capacity, he can revoke the LPA. 2. Procedure: a. Through OPGO: where donor reapplies for a new LPA b. Revocation Form: Fill up Revocation of LPA Form, give written notice to all donee(s), give written notice to Public Guardian (Reg 21(1), MCR) 3. Revocation fee of $30 applies 47  LPA Revocation & Termination of Donees’ Appointment Automatic Sections 15(3)-(8), MCA 1. P’s bankruptcy revokes the Property & Affairs powers only 2. Termination of the donee(s) appointment and revocation of the LPA is triggered when: - a. The donee dies or loses mental capacity; b. The donee (individual) is adjudged bankrupt (insofar as property & affairs powers only); c. The donee (non-individual) is in liquidation, winding-up, dissolution or under judicial management d. The donee disclaims the appointment UNLESS (a) there is a replacement donee, or (b) the donee is one of 2 or more persons appointed to act as donees jointly and severally in respect of any matter and, after the event, there is at least one remaining donee 48 LPA Activation of LPA 1. A donee is able to transact on a donor’s behalf, only when the Donor has been certified by a registered medical practitioner to have lost mental capacity. That is when the LPA is activated. 2. To use the LPA to transact with third parties (banks, insurance companies, other government agencies etc): a. Donee to login to the OPGO system and send a copy of the LPA to relevant third parties via the OPGO dashboard; and b. Present a copy of the medical report certifying the donor’s loss of mental capacity to the relevant third parties. 3. The medical report for activation of LPA is in a prescribed format. (Note: Section 13(10) MCA) 49 LPA Activation of LPA – Medical Report 50 3. Appointment of deputies 51 OVERVIEW 1. Introduction 2. Procedure 3. Relevant Persons 4. Restrictions 52  DEPUTIES Introduction When a person (“P”) has no mental capacity in relation to his personal welfare or Section 20(1) & property and affairs, an application can be made to the court to appoint a deputy to 20(2) make decisions on P’s behalf in relation to the matter(s). NOTE: P must not have donee(s) appointed under an existing LPA P need not be 21 years old for court to appoint a deputy or to make decisions on P’s behalf, if the Court considers that P will still lack mental capacity to make such decisions when he attains the age of 21. NOTE: Court must have regard to the principle that an appointment of the parents or Section 21 guardian of P as deputy is to be preferred to the appointment of any other person as deputy NOTE: subject to Rule 176(A)(3) FJR – for uncontested application for specified matters under FJCPD 61A, P must be at least 18 years old at the time the application is made and every relevant person consents to the application. 53  DEPUTIES Introduction Principles, Best Interests & Other Considerations Section 20(3) In exercising its power to appoint deputies, the Court will have regard Principles & best interests to the principles (Section 3) and best interests (Section 6) of P The Court must also have regard to the principles that: - Section 20(4) 1. A decision by the court is to be preferred to the appointment of a Other deputy to make a decision; considerations 2. The powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances 54 DEPUTIES Procedure 3. Doctor’s 1. Originating 2. Supporting 4. Consents / Service Affidavit & Medical Summons Affidavit on Relevant Persons Report Permission to commence proceedings (Rule 176(2) & (3) FJR) 1. The Applicant must apply to Court for permission to commence the application for deputyship UNLESS the applicant is related by blood or marriage to P. 2. Procedure (48(2) FJCPD) a. Where permission is required, that prayer may be included in the main application itself. b. The grounds upon which the plaintiff or applicant is relying to obtain such permission must be stated clearly in the supporting affidavit. 55 DEPUTIES Procedure 3. Doctor’s 1. Originating 2. Supporting 4. Consents / Service Affidavit & Medical Summons Affidavit on Relevant Persons Report Filing of application (46(1) FJCPD) 1. Application for deputyship to be filed in Family Justice Courts Notification of P (Rule 181 and 182 FJR; 52 FJCPD) 1. Provide P with the requisite information in manner that is appropriate to P’s circumstances 2. Certificate of notification: Form 223 3. Dispensation of notification by court 56 DEPUTIES Procedure 3. Doctor’s 1. Originating 2. Supporting 4. Consents / Service Affidavit & Medical Summons Affidavit on Relevant Persons Report Form 217 to Appendix A, Family Justice Courts Practice Directions (“FJCPD”) (Rule 176(1), FJR; Para 54(1)-(6), FJCPD) – Originating Summons must state: - 1. Whether the declaration sought in respect of P’s lack of capacity concerns P’s personal welfare or property & affairs or both; 2. If more than 1 deputy sought, whether they are acting jointly, or jointly & severally 3. Powers sought for the deputies, which are drafted appropriately to suit the purpose of the application at hand; and 4. Any other specific orders or reliefs required on the particular facts of each case 57 DEPUTIES Procedure 3. Doctor’s 1. Originating 2. Supporting 4. Consents / Service Affidavit & Medical Summons Affidavit on Relevant Persons Report Examples of fact-specific powers / orders: - 1. That the Applicant be appointed the litigation representative of P’s minor child 2. That the Applicant be empowered to withdraw DPS subsidies / apply to CPF to withdraw such subsidies 58 DEPUTIES Procedure 3. Doctor’s 1. Originating 2. Supporting 4. Consents / Service Affidavit & Medical Summons Affidavit on Relevant Persons Report Form 218 OR 219 to Appendix A, FJCPD (FJCPD 54(7)-(8B)) 1. Form 219 - applications for direct payment of P’s hospital and/or nursing home charges from P’s funds or P’s insurance and where no deputy is to be appointed; Form 218 – all other cases 2. If there is more than one applicant, a single affidavit should be made by all (i.e. they should not file separate supporting affidavits). 59 DEPUTIES Procedure 3. Doctor’s 1. Originating 2. Supporting 4. Consents / Service Affidavit & Medical Summons Affidavit on Relevant Persons Report Form 218 OR 219 to Appendix A, FJCPD (FJCPD 54(7)-(8B)) The following search results must be exhibited in the supporting affidavit: 1. Office of the Public Guardian search result showing if P has registered an LPA; 2. Office of the Public Guardian search result showing if there is a past Mental Capacity Act or Mental Disorders And Treatment Act Order in respect of P; and 3. Wills Registry search result showing if P has registered a Will. 60 DEPUTIES Procedure 3. Doctor’s 1. Originating 2. Supporting 4. Consents / Service Affidavit & Medical Summons Affidavit on Relevant Persons Report Relevant Persons (if any) (Para 50(7), 51(2), FJCPD) 1. The details of all relevant persons who should be served are to be listed clearly in the supporting affidavit. Where service would not be effected on relevant persons who should be served, the reason why this is so must be stated in the supporting affidavit. 2. If relevant persons have given their consent to the application and dispensation of service, this should be stated clearly in the supporting affidavit 3. See 4. Consents / Service on Relevant Persons for elaboration 61  DEPUTIES Procedure 3. Doctor’s 1. Originating 2. Supporting 4. Consents / Service Affidavit & Medical Summons Affidavit on Relevant Persons Report Medical Report (Para 54(9)-(9A), FJCPD) 1. Must distinguish doctor’s own observations / conclusions on examination of P from conclusions based on information given to him 2. Must contain a clear opinion as to: - a. Whether P lacks capacity in relation to the matters specified in the application; b. P’s prognosis – i.e. whether he is likely to regain capacity ◆ NOTE: The originating summons, the supporting affidavit and the doctor’s affidavit exhibiting the medical report must be consistent as to whether P lacks capacity in relation to his personal welfare or his property and affairs or both 62 DEPUTIES Procedure 3. Doctor’s 1. Originating 2. Supporting 4. Consents / Service Affidavit & Medical Summons Affidavit on Relevant Persons Report Medical Report (Para 54(9)-(9A), FJCPD) 1. Must be current – not more than 6 months before the date of application 2. Should be based on a recent examination of P by the doctor making the report and it should contain sufficient information to justify the doctor’s opinions and conclusions. 3. Must be exhibited to an affidavit sworn / affirmed by the doctor – Form 224 63 DEPUTIES Procedure 3. Doctor’s 1. Originating 2. Supporting 4. Consents / Service Affidavit & Medical Summons Affidavit on Relevant Persons Report Who are “relevant persons”? (Para 50(1)-(3), (6), FJCPD) 1. Persons who have an involvement in P’s life and/or who are likely to have an interest in the application. 2. Often, P’s immediate family members, by virtue of their relationship to P, are likely to have an interest in being notified that an application has been made to the Court concerning P. 3. Para 50(9), FJCPD: An organisation providing residential accommodation to P is considered a relevant person 64 DEPUTIES Procedure 3. Doctor’s 1. Originating 2. Supporting 4. Consents / Service Affidavit & Medical Summons Affidavit on Relevant Persons Report Who are “relevant persons”? (Para 50(1)-(3), (6), FJCPD) 1. Often includes immediate family members – P’s spouse, children (aged 21 and above), parents / guardians, brothers & sisters (aged 21 and above) 2. Persons who are likely to have an interest in the application: - a. any other relatives or friends who have a close relationship with P; b. any person who has a legal duty to support P; c. any person who will benefit from P’s estate; and d. any person who is responsible for P’s care. 65 DEPUTIES Procedure 3. Doctor’s 1. Originating 2. Supporting 4. Consents / Service Affidavit & Medical Summons Affidavit on Relevant Persons Report “Relevant persons” must be served (Para 49(1), 50(3), 50(4), 50(5), 50(9) & 51, FJCPD) 1. The applicant should serve the application, the supporting affidavits and the Notice to Relevant Person in Form 222 in Appendix A, FJCPD on all relevant persons 2. If P resides at an organisation providing residential accommodation, these documents are to be served on such organization as soon as possible and not more than 2 working days after the application is filed 3. If any relevant person has consented to the application and dispensation of service, the consent in Form 221 should be filed with the application 66 DEPUTIES Procedure 3. Doctor’s 1. Originating 2. Supporting 4. Consents / Service Affidavit & Medical Summons Affidavit on Relevant Persons Report Objection by relevant person (Para 53, FJCPD) A relevant person served with an application may object to the whole or part of the application – must apply to Court within 21 days after the date on which he or she was served with the application to be joined as a party 67  Deputies Powers of Court – Section 20(2) read with 22 & 23 Personal Welfare Property & Affairs s 23(1), MCA control and management of P’s property sale, exchange, charging, gift, disposition of P’s property s 22(1), MCA acquisition of property where P is to live carrying on of any profession, trade or business P’s contact with any specified person; dissolving a partnership which P is a member prohibit named person from contact with P carrying out of contract entered into by P; give/refuse consent to carry out/continue discharge of P’s debts/obligations treatment & clinical trial (subject to AMD) settle P’s property on trust (for P’s / others’ benefit) give/refuse/revoke consent involving P under make/revoke CPF / insurance nomination Human Biomedical Research Act 2015 execution for P of a will give a direction that a person responsible for P’s maintenance, education, benefit and advancement of P’s health care allow a different person to take over spouse/parent/minor or intellectually disabled child that responsibility exercise of any power vested in P (beneficially/as trustee) (subject to section 25 (restriction on deputies)) conduct of legal proceedings in P’s name or on P’s behalf (subject to section 25 (restriction on deputies))  DEPUTIES Restrictions on powers of deputies – Section 25 A deputy may not be given powers to: 1. Prohibit a named person from having contact with P 2. Direct a person responsible for P’s healthcare to allow a different person to take over that responsibility 3. Dispose of P’s property by making gifts (cf. powers under the LPA) 4. Make or revoke CPF / insurance nomination 5. Execute a will for P 6. Carry out or continue life sustaining treatment on P or any other treatment on P which a person providing health care reasonably believes is necessary to prevent a serious deterioration in P’s condition. 69 General Excluded Decisions under the MCA* 70 4. The Public Guardian 71  THE PUBLIC GUARDIAN Functions & Powers Sections 31 & 32, MCA: - 1. Establishing & maintaining register of LPAs, 7. Dealing with representations / complaints orders appointing deputies, and professional about the way in which a donee or deputy deputies exercise their powers and any act under 2. Supervising court-appointed deputies Section 10, MCA 3. Directing a member of the Board of Visitors to 8. Investigating any contravention / alleged visit (i) a donee, (ii) a deputy or (iii) P and make contravention of the MCA a report to the Public Guardian on specific 9. Publishing information relating to the matters discharge of the Public Guardian’s functions 4. Receiving security which the court requires a 10. Requiring any person who has any information person to give for the discharge of his or document which relates or is reasonably functions believed to relate to P to provide the 5. Receiving reports from donees and deputies information or copy of/extract from/actual 6. Reporting to the court on proceedings under document to the Public Guardian, and the MCA requiring them to attend at a specific time72 and Notice Copyright © 2024, Singapore Institute of Legal Education. All rights reserved. The Course materials are developed by the Singapore Institute of Legal Education, based on the content, syllabus, and guidance provided by the Chief and Principal Examiners and their teams. No direct or indirect reproduction, publication, communication to the public, adaptation or any other use (that is prohibited and/or proscribed by copyright laws) of the Course materials in whole or in part in any form or medium is allowed without the written permission of the Singapore Institute of Legal Education. Part B Candidates should refer to the Code of Conduct for more information, particularly, the sections on conduct and behaviour, and the use of SILE resources.