More decision-making options mooted for mentally-incapacitated

SINGAPORE — Singaporeans will be able to appoint and pay professionals to make decisions on their behalf should they lose mental capacity, under proposed changes to the law announced by the authorities yesterday.

The proposal comes amid rising singlehood and an increasing number of elderly people living alone. The number of people without family members willing and able to make decisions about their personal welfare and property and affairs, should they lose the mental ability to do so, is expected to go up. This could result in more demand for individuals or entities to serve as donees or deputies for a fee, said the Ministry of Social and Family Development as it invited public feedback on the proposed amendments to the Mental Capacity Act.

Through a document called the Lasting Power of Attorney (LPA), donees are appointed by donors to act on the latter’s behalf should they lose mental capacity. Deputies are appointed by the court.

Currently, donees for one’s personal welfare – which include where to live and day-to-day care decisions – must be individuals aged 21 and above. Donees for property and affairs can be individuals above 21 who are not undischarged bankrupts, or a licensed trust company. While the licensed trust companies can charge a fee for the service, individual donees are not allowed to be paid under current laws.

As a safeguard, the MSF proposes that anyone intending to be a professional deputy must first register with the Public Guardian.

LPAs and protection for vulnerable elderly were cast into the spotlight following news last year of the alleged manipulation of wealthy widow Chung Khin Chun, 88, by former tour guide Yang Yin. Yang, a China national, gained control of her assets in 2012 via an LPA, which has since been revoked. Yang is facing criminal charges and is also being sued by Mdm Chung’s niece, Mdm Hedy Mok, for loss and damages arising from his alleged breach of duties under the LPA.

As of Dec 31 last year, about 8,750 LPAs had been accepted in total, with 2014 alone seeing 3,250 people signing up.

Singapore Management University Professor of Law Tang Hang Wu, who has previously written a commentary advocating for a non-profit company providing services as a donee or deputy to be set up, welcomed MSF’s proposal to professionalise the industry, noting social trends and some regulation envisaged by the Office of the Public Guardian.

Prof Tang said the amount of fees to be charged, which the MSF said would be a private arrangement with the donor, needs further thought. Problems could arise if donees are entitled to unilaterally amend fees charged when a donor loses mental capacity, for instance. He suggested that fee guidelines could be issued for estates that are “not too large”.

Family lawyer Andrew Tan Tiong Gee felt professional donees may not be as effective as family members, as they would not know a donor’s background or his attachment to various things. This could lead to potentially harsh and heart-rending decisions made after a donor has lost mental capacity. The fee charged by a professional could be an additional burden on a donor who is not well-off, added Mr Tan, who felt a next-of-kin is still the best option for a donee.

Other changes proposed to the Mental Capacity Act include empowering the court to revoke an LPA or deputyship order where a donee or deputy is clearly not suitable to continue in the role and poses the risk of abusing his authority. He could have been convicted of criminal breach of trust or other offences involving fraud or dishonesty, for example.

The MSF also wants the court to have the power to temporarily suspend a donee or deputy’s powers in the absence of a pending court application, in order to give the Public Guardian time to gather evidence for an investigation and to safeguard the interests of a mentally incapacitated person in the meantime.

The public may submit feedback to consultations [at] msf.gov.sg by Dec 28.

An advisory has been distributed with LPA forms reminding donors to appoint trusted donees and to consider informing family members of their intention to register an LPA.

The MSF is conducting a pilot project with the Family Justice Courts and Movement for Intellectually Disabled in Singapore (MINDS) to make it easier for parents of MINDS students to obtain a deputyship order from 
the court.

It has also formed a panel of qualified people who are willing to apply to the court to be appointed deputies for mentally incapacitated individuals with modest assets but without family or friends willing to step forward.