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Introduction to Application for Appointment of Deputy under the Mental Capacity Act 2008

Mental Capacity Act 2008 introduced provisions that serve to enable individuals (P) to appoint others to manage and make decisions for a range of matters on their behalf when P no longer has mental capacity. An appointed Deputy is one such individual that would be able to exercise a variety of powers relating to P’s personal welfare and property. Such applications are usually initiated by relatives of P after P is alleged or suspected to have lost their ability to understand information and make corresponding decisions.

This article will address a few common questions about the appointment of a Deputy.

Is a Deputy the same as a Donee?
It is important to note that the appointment of a Deputy is different from the appointment of a Donee under a Lasting Power of Attorney (LPA), which is usually initiated by P themselves and carried out in advance of P losing their mental capacity. Therefore, if you are considering making an application to become a Deputy, it may be pertinent to check if a Donee had been appointed in advance.

However, a Deputy and a Donee are generally similar with respect to the range of their decision-making powers, notwithstanding that the scope of decision making powers granted to a Deputy or Donee would be unique to each case.

Who can be appointed as a Deputy?
Applicants for Appointment of Deputy are usually family members of P.

Nevertheless, you may also apply to be appointed as a Deputy even if you are not a family member of P.

From 2016, professionally trained individuals may also be appointed as Deputies. These individuals include lawyers, accountants, healthcare, and social service professionals who are registered under their respective professional bodies, have met a certain set of criteria set by the Public Guardian and are later successfully certified by the Ministry of Social and Family Development (MSF).

What is key here that the Court seeks to ensure that the Deputy is someone who would be able to make decisions and carry them out in the best interests of P. The Court may find it appropriate to appoint a professional deputy or a non-family member even if P still has living family members if it is shown that P does not have a close relationship with them or that they would be unable to make decisions bearing P’s best interests in mind.

If you are unsure about whether you are suitable to be appointed as a Deputy, you may wish to consult an experienced family lawyers in Singapore.

What documentation is involved in making an application to be appointed as a Deputy?
The preliminary process of the application involves the following:

  1. Submission of an Originating Summons which would lay out your rationale for wanting to be appointed as Deputy.
  2. Submission of a medical report and a doctor’s letter in the form of affidavit(s) that can attest to whether P indeed lacks mental capacity to make decisions.

You may also be required to submit other supporting affidavits to back up your claim that P lacks mental capacity since the Court would address the application starting with the presumption that mental capacity is present.

These submissions may prove tenuous to prepare if you are not familiar with the law. Contact family lawyers can be on hand to prepare these submissions on your behalf so as to make the strongest case possible.

What if P, at any point in time, feels that he/she still retains their mental capacity?
P should inform the applicant seeking to be appointed as a Deputy, so that the application may be withdrawn in the Court.

However, if the applicant is not cooperative and insists on going ahead, P should proceed to submit Form 4 of the Family Justice Courts Practice Directions and supporting affidavits (medical report etc) to show proof that P still retains mental capacity and therefore does not require a Deputy to make decisions on his/her behalf.

This process can be taxing especially if you are unsure of what documentation is needed to demonstrate that you still have mental capacity or if you are simply unsure of whether you still qualify as mentally competent. If you are facing such a situation, our experienced family lawyers can assist you through this process by making these submissions on your behalf. These submissions are especially pertinent since the prospective appointment of a Deputy would cause you to lose your autonomy in important personal affairs in the eyes of the law.

What if there are individuals that are not the Applicant or P, that object to the application?
When the application is first made, some individuals may be notified if they are categorised as Relevant Persons. Relevant Persons are essentially individuals who have an interest in or are closely involved in P’s life. They broadly refer to the direct family members of P such as P’s spouse, P’s siblings (aged 21 years old and above), P’s children (aged 21 years old and above), and P’s parents/guardians.

Any Relevant Person could object to the prospective appointment of a Deputy for a variety of reasons, such as the belief that the prospective Deputy would not be able to exercise decisions in the best interests of P.

Whether you are a direct family member or believe yourself to be a Relevant Person that has not been notified, and have reason to object to the application, an experienced family lawyers would be able to represent you in making submissions so that you can be added as a party to the application and be heard by the Court.

In certain applications, there may be a Defendant named in the Originating Summons besides the applicant and P. This typically happens when the applicant is attempting to replace or remove the Defendant as the existing Deputy due to a suspected abuse of power.

The Court has the discretion to replace the existing Deputy, in this case the Defendant, if abuse of power is found. An analogous situation is seen in the famous case of Mdm Chung who had been manipulated by Yang Yin, her ex-tour guide and later her appointed Donee, into giving him an exorbitant amount of money. Mdm Chung’s niece later applied to be Mdm Chung’s Deputy in place of Mr Yang, who was named as the Defendant in the action. Mdm Chung’s niece was ultimately successfully appointed as Mdm Chung’s Deputy.

If you have been named as the Defendant in an Originating Summons relating to the appointment of a Deputy, you may consult an experienced family lawyers who can advice you on the next suitable course of action.

Alternatively, if you are in the opposing position where you fear that abuse of power by a Deputy has taken place, it is imperative that you seek the advice of our experienced family lawyers who will be able to represent you in your application. In urgent cases, this might involve an application for an injunction to prevent an appointed Deputy from deliberately disposing, or diminishing the value of P’s assets before the application has been heard by the Court.

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