What is Mental Capacity Act? : New Law To Enable Early Financial Planning Before Mental Incapacity
September 28th, 2008 by ALVIN SOONG
A NEW law is being planned to give Singaporeans a say over who will look after them if they lose their mind to dementia, illnesses or accidents. The draft Mental Capacity Bill allows them to decide in advance who their guardian - known in legal terms as a donee - should be.
Parents of intellectually disabled children can also appoint caregivers who will take over the role of looking after the children if the parents die or become mentally incapacitated themselves. These caregivers, to be known as ‘deputies’, will have to be vetted by the court. In both cases, the guardians will be allowed to make decisions concerning the day-to-day welfare, medical, money and property matters of their charges. Guardians, however, will be barred from taking decisions such as making or revoking a Central Provident Fund nomination, or an Advanced Medical Directive.
Community Development, Youth and Sports (MCYS) Minister Vivian Balakrishnan yesterday unveiled the first draft of the Bill, intended for public feedback until Oct 31. The draft law comes on the back of a growing number of people suffering from dementia, expected to reach about 20,000 by 2012.
Already, the courts are having to deal with more families applying for a decision on who should look after a mentally incapacitated person. There were 228 cases last year, up from 188 in 2000. The proposed changes will pre-empt the need for such applications by empowering people to decide in advance who should take care of them, said Dr Balakrishnan.
The law addresses the inadequacies of the current Mental Disorders and Treatment Act, which allows for guardians to be appointed only after a person has lost his mental capacity. Making a decision in advance would also prevent disputes later over who should take care of, say, the finances of someone who succumbs to dementia.
The names of guardians will be registered with a new Office of Public Guardians, expected to come under the MCYS. It is likely that medical proof of mental incapacity has to be provided to this office before the guardian can start serving in the role. All decisions will also have to be taken in the ‘best interests’ of the person being served.
To prevent guardians from misusing their powers, the Government plans to criminalise wilful neglect or ill-treatment of a mentally incapacitated person. Those convicted can be jailed up to a year or fined up to $7,000, or both.
The Ministry of Community Development, Youth and Sports (MCYS) is looking into the proposed legislation, which will provide a legal framework to allow a person to voluntarily make advance plans for his own financial and personal welfare should he lose his mental capacity in the future. Under the proposed legislation, an individual can voluntarily make advance plans under a new statutory form of power of attorney to appoint a person (known as a donee) to decide or act on his behalf should he become mentally incapacitated.
The Ministry of Community Development, Youth and Sports (MCYS) is looking into whether to put in place a Mental Capacity Act.
The proposed legislation will provide a legal framework to allow a person to voluntarily make advance plans for his own financial and personal welfare should he lose his mental capacity in the future. Under the proposed legislation, an individual can voluntarily make advance plans under a new statutory form of power of attorney to appoint a person (known as a donee) to decide or act on his behalf should he become mentally incapacitated.
The proposed legislation will help Singaporeans plan ahead to ensure their personal and financial well-being in the event that they lose their mental capacity to conditions such as dementia, traumatic brain damage and stroke. It will help Singapore to prepare for more elderly persons in our population. The legislation will also be considering measures for parents of the disabled with severe intellectual impairment to have donees for their dependents before they pass on. The donees could be trusted family members or family friends.
Proposed legislation addresses current gaps
The proposed legislation aims to address the gaps in the existing system on decision making for persons who are mentally incapacitated.
Currently, under the Mental Disorders and Treatment Act (MDTA), the High Court can appoint a Committee of Persons or Committee of Estate to handle the decision making or property related decisions of persons who have lost their mental capacity. However, the appointment can only be done after a person has lost his mental capacity.
Tests for assessing mental capacity and duties of donees will be spelt out
The proposed Mental Capacity Act will be based on the key principle that a person has the mental capacity to make decisions unless proven otherwise. It will also be guided by the principle that decisions made on behalf of the person must be done for his best interests.
As such, the proposed legislation will set out a clear test for assessing and determining a person’s capacity to make decisions for himself. This assessment could involve professionals such as doctors, social workers or lawyers if the matter involves a major decision such as a medical treatment or a legal contract.
The legislation will also provide a statutory framework to guide donees in fulfilling their duties. Donees will be given statutory protection for their actions as long as they act within the ambit of the legislation. At the same time, safeguards will be introduced to ensure that the decision makers do not abuse their powers. The legal models of jurisdictions such as the UK, Japan, Germany and Hong Kong are currently being studied so as to come up with a system that caters best to the needs of our population.Public views will be sought consultation. Stakeholder and public consultation is expected to commence in the middle of this year.
Extracted from Straits Times and sources BY MINISTRY OF COMMUNITY DEVELOPMENT, YOUTH AND SPORTS
