We assist clients in applying for a Deputyship order when a family member lacks mental capacity and does not make a Lasting Power of Attorney.
It is desirable to apply for a deputy in the following situations:
- Young children with intellectual disabilities. The Mental Capacity Act allows parents of children with intellectual disabilities below the age of 21 years old to apply to the Family Court to appoint a deputy to ensure that their child’s future care is arranged if the parents should pass away.
- Where you have an adult family member who has lost mental capacity due to an illness or accident, a court order to appoint a deputy would allow the deputy to take care of the person and manage their assets and bank accounts in their best interests.
What is the Mental Capacity Act?
The Mental Capacity Act (MCA) was passed in 2008. It introduced the Lasting Power of Attorney (LPA), which allows individuals (called “donors”) to plan ahead by appointing a “donee” to make decisions for them if they lose mental capacity. The MCA also allows the Court to appoint “deputies” for those who did not make an LPA.
A loss of mental capacity may be caused by dementia, a stroke, an accident, or other diseases and conditions. A loss of mental capacity is not necessarily associated with old age. Certain young individuals may also lack mental capacity. As more people age in Singapore and suffer from a lack of mental capacity, legislation was introduced to balance a person’s right to make their own decision with the need to protect them when they lack the mental capacity to decide.
The MCA allows for a Lasting Power of Attorney (LPA) to be made to appoint trusted persons called a Donee to act on behalf of a Donor if they lose mental capacity. This may include managing the Donor’s financial and personal welfare matters.
The Act also allows parents whose children have intellectual disabilities to apply to the court for a trusted person as deputy to make decisions for their children.
An Office of the Public Guardian was set up to offer protection for those who are mentally incapacitated.
The Five Statutory Principles to protect persons who lack capacity
The following principles apply to the MCA:
- A person must be assumed to have capacity unless it is established that he lacks capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
- An act done or decision made under this Act for or on behalf of a person who lacks capacity must be done or made in his best interests.
- Before the act is done or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a less restrictive way of the person’s rights and freedom of action.
Definition of Lack of Mental Capacity
Under Section 4 (1) of the MCA, “a person lacks capacity in relation to a matter if at the material time he is unable to decide for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.
What is a Deputy?
A deputy is a court-appointed individual who is granted specific powers by the Court to make decisions for the benefit and welfare of a person who lacks mental capacity and who did not make a Lasting Power of Attorney (LPA).
Apart from taking care of the mentally incapacitated person’s personal needs and financial affairs, the deputy is also required to submit an annual report to the Office of Public Guardian to explain what decisions the deputy had made for the person and how the deputy had used that person’s monies.
When is an Appointment of Deputy Needed?
You would need to apply to the court to appoint a Deputy if the person lacks mental capacity and there is no relevant Lasting Power of Attorney [LPA].
Parents of young children who have intellectual disabilities may also apply under the MCA for a Deputy. Typically, the parents are concerned about who will take care of their children should they (the parents) have anything unfortunate happen to them. The Mental Capacity Act allows parents of children with intellectual disabilities below the age of 21 to apply to the court to appoint a deputy to ensure that their child’s future care is arranged if the parents pass away or lose their mental capacity.
A Deputy is necessary if a person lacks mental capacity (for example, has dementia or is in a coma). For example, a court order appointing a deputy could allow a deputy to access their bank account to cover such expenses.
What a Deputy needs to know
Please discuss with family members whether it is necessary to apply for a Deputy to be appointed under the Mental Capacity Act. Decide who is to be the deputy and how many deputies are required. There should not be any family disagreements over the choice of the Deputy.
Decide on the care and financial plan for that person, including:
- Where is the person going to stay?
- Who will be taking care of that person?
- What are the arrangements for paying for the expenses incurred for this person?
- How long can the person funds last?
- Check with various organisations on what powers they require for the deputy to perform certain transactions, such as the transfer of funds to/from the person’s account.
You have to file your application for a deputy’s appointment within six months of obtaining the medical report.
If you are applying for a Mental Capacity Act Order restricted to the use of monies of S$60,000 and below
From 3 Oct 2019, applications for deputyship court orders involving the use of monies of up to $60,000 or a matter listed in Annex A of this Family Justice Courts’ Quick Reference Guide qualify for the simplified filing track.
Under this track, applications can be filed online through the Family Justice Courts’ Integrated Family Application Management System (iFAMS) using SingPass.
There are two types of deputyship orders that can be applied for, depending on the situation:
- Limited short-term urgent orders
- Long-term orders
If you are applying for a Mental Capacity Act Order for the use of monies in excess of S$60,000
This is the most common type of application as the powers sought are comprehensive, and you do not need to go back to court to seek another court order.