Understanding the Mental Capacity Act in Singapore

by 15 September 2021Family Law & Divorce, Knowledge & Insights

Understanding the Mental Capacity Act in Singapore

The Mental Capacity Act (MCA) was passed in Singapore in 2008. Its main purpose is to allow individuals (called “donors”) to plan ahead and appoint someone (called “donees”) to make important decisions for them in the event they lose mental capacity.

According to the act, persons who lack mental capacity are defined as “unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”. Types of mental incapacity can be permanent, temporary, or fluctuating.

The MCA is based on five key principles:

  • 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 are unsuccessful
  • An act done, or a decision made, under this Act for or on behalf of a person who lacks capacity must be in his best interests
  • A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  • 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 way that is less restrictive of the person’s rights and freedom of action.

How is mental capacity assessed?

Assessments of a person’s mental capacity can be formal or informal. Informal assessments can be done by the person’s caregiver, but formal assessments can only be done by an accredited GP or specialist.

According to Section 5 of the MCA, a person is deemed unable to make decisions for themselves if they are unable to:

  • Understand the information relevant to the decision; 
  • Retain that information; 
  • Use or weigh that information as part of the decision-making process; or 
  • Communicate his decision.

What can be done if someone lacks mental capacity?

1. Lasting Power of Attorney (LPA)

Individuals (the “donor”) can plan ahead by applying for a Lasting Power of Attorney (LPA) to appoint someone they trust (the “donee”) to make decisions for them in the event they lose mental capacity. Donees need to be at least 21 years old, and can be appointed to act in two broad areas: personal welfare, and property and affairs.

Donors usually make LPAs with family in mind. Should a donor be single, divorced, or have no next-of-kin or close friends, he may opt for a professional donee. Professional donees can be individuals or organisations. Take note that LPAs created in Singapore will only be recognised here. Likewise, LPAs from other countries will not be recognised in Singapore.

2. Deputyship

In the absence of an LPA, the Court may appoint a deputy to make decisions on behalf of a person who loses their mental capacity. This is pursuant to Section 24 of the Mental Capacity Act.

Parents of children with intellectual disabilities below the age of 21 years old may also apply to the court to appoint a deputy to manage their children’s affairs should the parent unexpectedly pass away or lose mental capacity themselves. The deputy can be a close friend or family member but must be at least 21 years old.

Start planning for your loved ones by speaking to a family lawyer in Singapore

Protect your loved ones by planning ahead. Apply for an LPA to appoint someone you trust to take care of your affairs and act in your best interests should you lose mental capacity in the future. Our team of dedicated family lawyers at Tembusu Law is here to advise you on your options. Get in touch with us today for more information.

About the author

About the author

Jonathan Wong

Jonathan is the Founder and Managing Director of Tembusu Law. He is also the founder of LawGuide Singapore, a prominent legaltech startup which successfully created and launched Singapore’s first legal chatbot in 2017.

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