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.
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 his own decision with the need to protect him when he lacks 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 he loses 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 for the MCA:
(1) A person must be assumed to have capacity unless it is established that he lacks capacity.
(2) 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.
(3) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(4) 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.
(5) 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 an LPA?
Under the Mental Capacity Act, a person who wishes to make advance plans for himself can do so through a Lasting Power of Attorney (LPA). An LPA allows a person (called the Donor) to appoint a proxy (called the Donee) to act or make decisions on his behalf for matters relating to his personal welfare and property and finances.
The LPA can only be made and is valid if the person making it is still of sound mind and has mental capacity.
What is a Deputyship?
If a person loses mental capacity and there is no LPA in place, the family has to apply to the court for an order that someone be appointed as a Deputy under the Mental Capacity Act. This is more costly and takes a longer time than having a Lasting Power of Attorney.
What your lawyer can do for you
Consult a family lawyer if you wish to make a Lasting Power of Attorney. The LPA must be made when you still have mental capacity. When a person has lost mental capacity and did not make an LPA, the family would have to apply for one of them to be appointed as a Deputy under the MCA.
Contact us today at 6854-5336 if you wish to get an LPA done or if you need help to apply for a Deputyship under the Mental Capacity Act.
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