Help, protection for those lacking mental capacity

An elderly woman walking with the aid of a walking stick.
An elderly woman walking with the aid of a walking stick.PHOTO: ST FILE

Courts can appoint professionals to act for them and step in earlier if there is risk of abuse

In the light of an ageing population, the courts have been given powers to appoint professionals such as lawyers or social workers to make key decisions regarding the personal welfare or finances of people who have lost their mental capacity.

And if those appointed as proxy decision-makers are at risk of abusing their powers, the courts can now step in earlier to remove them.

The Bill to update the Mental Capacity Act (MCA) to enhance its use and protection was passed by Parliament yesterday.

"The MCA has been in operation for six years now... We have learnt useful lessons. It is timely to amend the MCA to meet emerging needs and strengthen its protection capability," said Minister for Social and Family Development Tan Chuan-Jin as he presented the proposed changes for debate.

The Act was passed in 2008 to empower individuals to plan ahead and make their wishes known for the future before they lose their cognitive abilities.

One of those emerging needs is the rising number of singles and elderly people who live alone or are childless and thus have no one to rely on to make decisions on their behalf, for instance, if they slip into dementia.

Estimates are that one in 10 here aged 60 and older has dementia.

The other concern is with a small but possibly growing number of elderly people who are exploited by those they have entrusted with their decision-making.

A high-profile case reported by The Straits Times was of a rich widow, Madam Chung Khin Chun, 89, whose niece sought to revoke the authority the elderly woman had granted to her tour guide Yang Yin, 42, in 2012.

The assets of Madam Chung are estimated to be worth $40 million. The power of attorney granted to Yang was revoked in 2014 and he has been charged with various offences.

With the changes made to the Act yesterday, some legal loopholes can be plugged to prevent vulnerable people from being exploited for their assets.

For instance, the courts can revoke a Lasting Power of Attorney (LPA) or deputyship order if the donee of an LPA or deputy is convicted of an offence or is no longer registered as a professional deputy or donee.

The courts can also suspend a donee's or deputy's powers even if no court application has been made.

The LPA scheme was started in 2010 to let individuals appoint a donee to make decisions on their behalf when they lose their mental capacity.

The courts may also appoint a deputy for those who are mentally incapacitated to make decisions for them. This is usually a family member or licensed trust company.

But family members may be unable to be deputies, for whatever reason, and the changes to the Act will enable the courts to appoint a professional instead.

Individuals, for instance those with sizeable assets, can also choose to pay professionals to be their donees. They may prefer this if they have complex instructions regarding the discharge of their care and assets.

In the debate, MPs welcomed the changes but highlighted the need for proper rules and training for appointed professionals. Other MPs such as Ms Jessica Tan (East Coast GRC) said a balance needs to be struck between protecting the interests of individuals and respecting the choices they have made.

She said: "While these amendments enhance protection, it will still require the court to respect the decisions made by individuals when they have the mental capacity to do so, even if these decisions may seem unusual, unreasonable or unwise to some of us."

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A version of this article appeared in the print edition of The Straits Times on March 15, 2016, with the headline 'Help, protection for those lacking mental capacity Help, protection for those lacking mental capacity'. Print Edition | Subscribe