The Mental Capacity Act (MCA) in Singapore is a crucial piece of legislation that safeguards individuals who are unable to make decisions for themselves due to an impairment or disturbance in the functioning of their mind or brain.
Understanding this Act is essential for families, caregivers, and professionals who may need to make decisions on behalf of those who lack mental capacity.
This blog will explore the scope and application of the Mental Capacity Act in Singapore, focusing on the decisions it governs, the protection it offers, and the legal framework in place to ensure the well-being of vulnerable individuals.
What Is The Mental Capacity Act (MCA) In Singapore?
The Mental Capacity Act (MCA) in Singapore was passed in 2008 to provide legal safeguards for individuals who may lose their mental capacity and are unable to make decisions for themselves.
The Act allows individuals, known as “donors,” to plan ahead by appointing someone they trust, called a “donee,” to make decisions on their behalf if they lose capacity.
Under the MCA, a person is considered to lack mental capacity if they are “unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.” This can be due to conditions that are permanent, temporary, or fluctuating.
Additionally, the Mental Health (Care and Treatment) Act (MHCTA) provides for the State to intervene in situations where individuals with mental health issues pose a danger to themselves or others.
Under the MHCTA, individuals can be detained for psychiatric assessment and treatment in a designated institution, such as the Institute of Mental Health (IMH). Detention is applied only under strict circumstances, with initial detention lasting up to 72 hours, and, if necessary, extended for up to 12 months.
Singapore’s police force also receives training to identify and respond to individuals with mental health issues, working alongside the Agency for Integrated Care (AIC) to raise awareness about mental health conditions.
The Mental Capacity Act and Mental Health Act in Singapore work in tandem to ensure that individuals receive the appropriate care and protection.
How Does The Mental Capacity Act Protect A Person Who Lacks Capacity?
The Mental Capacity Act aims to balance an individual’s right to make decisions with the need to protect those who lack the mental capacity to make those decisions. The Act provides legal safeguards to ensure that any decisions made on behalf of an individual are done in their best interest.
The MCA sets out five key principles to guide decisions made for someone who lacks mental capacity:
- Presumption of Capacity: Every person is presumed to have mental capacity unless proven otherwise. This ensures that individuals are not assumed to lack capacity based on age, illness, or other factors.
- Practicable Support: Before a person is deemed unable to make a decision, all possible steps must be taken to support them in making that decision. This could include explaining the situation in simple terms or using visual aids.
- Unwise Decisions: A person cannot be considered to lack capacity simply because they make a decision others view as unwise. Everyone has the right to make choices, even if others do not agree with them.
- Best Interests: Any act or decision made on behalf of a person lacking capacity must be done with their best interests in mind. The decision-maker must consider all relevant circumstances, including the person’s past wishes, feelings, and values.
- Least Restrictive Option: When making a decision or taking action on behalf of someone who lacks capacity, the decision must interfere as little as possible with their freedom and rights.
These principles ensure that the Mental Capacity Act in Singapore helps protect vulnerable individuals while still respecting their autonomy wherever possible. The ultimate goal is to support individuals in making decisions while ensuring their safety and well-being.
When Does A Person Lack Capacity?
Under the Mental Capacity Act (MCA) in Singapore, a person is considered to lack mental capacity if they are unable to make decisions for themselves due to an impairment or disturbance in the functioning of the mind or brain.
Section 4 of the Act explains that this could be a permanent or temporary condition. The key factor is that the person cannot, at the time a decision is required, make that decision because of their mental state.
How Is Mental Capacity Assessed?
Assessing mental capacity under the Mental Capacity Act in Singapore can be done either formally or informally. Informal assessments may be carried out by a caregiver, but formal assessments are the responsibility of an accredited GP or specialist.
According to Section 5 of the Mental Capacity Act, a person is considered unable to make decisions if they cannot:
- Understand the information relevant to the decision;
- Retain that information;
- Use or weigh that information as part of the decision-making process; or
- Communicate the decision.
It’s important to note that if someone can understand the information when it is explained in a way that suits their needs, such as through simple language or visual aids, they are not considered unable to understand.
Similarly, even if the person can only retain the information for a short period, this does not mean they lack the ability to make decisions. The focus is on the ability to make decisions at the time they are required, not the long-term retention of information.
What Can Be Done If Someone Lacks Mental Capacity?
When a person is deemed to lack mental capacity, several steps can be taken to ensure their welfare and protection. The Mental Capacity Act provides a framework for appointing a trusted person to make decisions on behalf of the individual.
1. Protection For Decision-Makers
The Mental Capacity Act in Singapore also protects decision-makers, including caregivers and professionals, who act on behalf of someone lacking capacity.
Section 7 of the Act ensures that as long as the decision-maker has taken reasonable steps to determine that the person lacks capacity and their actions are in the person’s best interest, they are protected from liability.
However, this protection has limits. It does not cover:
- Negligent acts or omissions: Decision-makers are not protected if they act carelessly or negligently.
- Enrolling someone in a clinical trial: The MCA does not provide protection for placing individuals in clinical trials without their consent.
- Inappropriate restraint: Using excessive or unnecessary restraint on an individual is not protected.
- Acts beyond authority: Any actions taken beyond the decision-maker’s legal authority are not covered.
The Mental Capacity Act provides clear guidelines to ensure that decision-makers act in the best interest of the person lacking capacity, focusing on their well-being and protecting their rights.
2. Lasting Power Of Attorney (LPA)
Under the Mental Capacity Act in Singapore, individuals can plan for potential future mental incapacity by creating a Lasting Power of Attorney (LPA).
Through this legal document, the individual (known as the “donor”) can appoint someone they trust (called the “donee”) to make decisions on their behalf if they lose mental capacity.
The LPA allows the donee to make decisions in two key areas:
- Property and financial affairs: Managing assets, paying bills, or handling financial decisions.
- Personal welfare and healthcare: Making choices related to the donor’s personal well-being and medical treatment.
For an LPA to be valid, the donor must be at least 21 years old and have the mental capacity to appoint a donee. The LPA only takes effect when the donor loses their mental capacity. The scope of authority given to the donee can be broad or limited to specific decisions, depending on the donor’s preference.
It’s important to note that a donee appointed to manage property and finances cannot make healthcare decisions unless explicitly authorised to do so by the donor in the LPA.
3. What Is A Donee And Who Can Be Appointed As One?
Under the Mental Capacity Act in Singapore, a donee is a person appointed by the donor through a Lasting Power of Attorney (LPA) to make decisions on their behalf if they lose mental capacity. The donee can be a family member, trusted individual, or a professional donee.
To qualify as a donee, the person must:
- Be at least 21 years old;
- Provide services without remuneration if they are a family member or friend;
- Be a professional donee if not related by blood or marriage. Professional donees can be individuals or organisations paid to perform this role.
Donees are responsible for making decisions in two areas: personal welfare and property and financial affairs. They must carry out their duties with reasonable care and skill. For professional donees, a higher standard of care is expected.
It is important to note that an LPA created in Singapore is only recognised within Singapore, and LPAs from other countries will not be recognised here.
4. Deputyship
If a person loses mental capacity without having made an LPA, the Court may appoint a deputy to make decisions on their behalf, according to Section 24 of the Mental Capacity Act in Singapore.
A deputy can also be appointed if ongoing decisions are required about a person’s property, financial matters, or personal welfare.
The Court will always act in the best interest of the person lacking capacity and will consider if the appointment of a deputy is truly necessary. The powers given to the deputy are usually limited in scope and duration, as required by the situation.
A deputy must be at least 21 years old and can be a family member, close friend, or a professional deputy. For cases involving property and financial matters, a professional deputy may be appointed if no suitable family member is available.
Parents of children with intellectual disabilities under the age of 21 can also apply for a deputy to be appointed for their child in the event the parents become unable to manage their child’s affairs due to death or loss of capacity.
5. Certain Decisions May Not Be Made On Behalf Of A Person Who Lacks Mental Capacity
Under Section 26 of the Mental Capacity Act in Singapore, there are specific decisions that cannot be made on behalf of an individual who lacks mental capacity, no matter the circumstances.
These decisions are considered too personal and significant to be made by another person, ensuring that the individual’s rights and autonomy are respected. The following decisions cannot be legally made on behalf of someone who lacks mental capacity:
- Consenting to marriage
- Consenting to touching of a sexual nature
- Consenting to divorce based on three years of separation
- Consenting to an adoption order
- Renouncing or adopting a religion
- Receiving treatment for gender change
- Consenting to sexual sterilisation
- Consenting to terminate a pregnancy
- Consenting to organ donation
- Making an Advanced Medical Directive
These restrictions are in place to protect the dignity and personal autonomy of individuals, even when they lack mental capacity. The decisions listed above involve deeply personal matters that the law recognises as beyond the scope of another person’s authority, ensuring ethical standards are upheld.
Conclusion About The Singapore’s Mental Capacity Act
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 divorce lawyers in Singapore at Tembusu Law is here to advise you on your options.
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Frequently Asked Questions About The Singapore’s Mental Capacity Act
Who Can Certify Mental Capacity In Singapore?
In Singapore, mental capacity can be certified by registered medical practitioners, accredited general practitioners, or specialists trained in mental health assessments.
These professionals are qualified to conduct formal assessments to determine if an individual lacks the ability to make decisions due to impairment in their mental function. The certification is typically required for processes like appointing a Lasting Power of Attorney under the Mental Capacity Act.
Is There A Fee For Registering A Lasting Power Of Attorney Under The Mental Capacity Act?
Yes, there is usually a fee for registering an LPA in Singapore, but the fee may vary based on specific circumstances such as exemptions or subsidies available to certain individuals.
Are There Specific Legal Documents Required Under The Mental Capacity Act?
Yes, the key legal document is the Lasting Power of Attorney (LPA), which must be registered with the Office of the Public Guardian. This document allows an individual to appoint a donee to act on their behalf should they lose mental capacity.
Is There A Difference Between Temporary And Permanent Lack Of Mental Capacity Under The Mental Capacity Act?
Yes, the Act covers both temporary and permanent conditions. Mental capacity may be impaired temporarily due to illness or injury, or permanently in cases such as dementia. The Act applies in both scenarios when decisions need to be made.
