What happens when a family member, through disability or an illness such as dementia, no longer has the mental capacity to make legal and financial decisions for themselves?
SARAH-MAE THOMAS is a dual-qualified lawyer in both Australia and Singapore. She runs her own law firm, Sarah-Mae Thomas LLC, and specialises in family-related legal matters. Here she sheds light on one of her key practice areas – one that not many of us consider enough: mental capacity matters. It’s really useful to know about for our parents, as well as other members of the family. And there’s no time like the present to learn more about it.
What does Singapore’s Mental Capacity Act (MCA) do?
The MCA aims to help people who care for those who lack mental capacity, while also allowing people to plan for a future in which they could potentially lose capacity themselves. This can happen with an aged parent who loses their faculties, for example, or with someone who suddenly goes into a coma before or during a legal proceeding. An application under this Act is also important in situations where you have a child who is mentally incapacitated and decisions need to be made on their behalf.
What should I do if a loved one loses their mental faculties?
If this happens, you may apply to the court to be appointed that person’s “Deputy” under the MCA. Mental capacity refers to one’s ability to make their own decisions on a specific matter at a particular time. This can apply even in cases of temporary incapacity. Under an MCA application, you’ll need to get a doctor to certify that the person is mentally incapacitated. You’ll also need to go to court to request that you be appointed the patient’s Deputy (more than one Deputy can be appointed), including telling the court what kind of powers you require. These powers fall within two broad categories: personal welfare and property matters.
What if my family member has been served with court documents but they lack capacity?
The MCA can also be relevant to other legal proceedings such as personal injury where you are trying to claim compensation for an accident or in a divorce matter, where action is required on behalf of the patient.
If I’m appointed a Deputy, can I do everything the patient could have done?
No. While you’re acting on their behalf, there are certain restrictions on the powers you have. For example, you won’t be able to execute wills or make major healthcare decisions for the patient that fall under the Advanced Medical Directive Act, such as rejecting life-sustaining treatment. You can’t consent to a decree of divorce being granted on three years’ separation; nor can you adopt a religion on the patient’s behalf.
What’s the difference between a Deputy and a lasting power of attorney?
An application to be appointed a Deputy occurs when an individual has already lost mental capacity. On the other hand, a lasting power of attorney (LPA) can only be made when an individual has mental capacity. The LPA allows you to choose someone you trust as a donee to make decisions and act on your behalf should you lose mental capacity in future.
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