Wednesday, 16 March 2016

Mental Capacity Act amended to allow paid professionals to make decisions for individuals

Help, protection for those lacking mental capacity
Courts can appoint professionals to act for them and step in earlier if there is risk of abuse
By Janice Tai, The Straits Times, 15 Mar 2016

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 The power of attorney granted to Yang was revoked in 2014 and he has been charged with various offences.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."





Do help me share this.We amended the Mental Capacity Act (MCA) in Parliament a few days ago. The MCA is an important...
Posted by Tan Chuan-Jin on Tuesday, March 15, 2016






KEY AMENDMENTS

INTRODUCTION OF PROFESSIONAL DONEES, PROFESSIONAL DEPUTIES

These persons are appointed and paid to make key decisions on behalf of those who are mentally incapacitated, in response to a rising number of elderly singles and elderly couples without children

BETTER PROTECTION FROM ABUSE

It will be easier for the court to revoke or suspend a Lasting Power of Attorney (LPA) when there is a high risk of donors or deputies exploiting the person, such as when he is charged or convicted of offences involving fraud or dishonesty. This will prevent him from using any assets while investigations are ongoing

GREATER CERTAINTY

Commercial transactions made by a donee or third party who did not know that an LPA had been revoked or suspended will be protected. Previously, only transactions made on LPAs that were not validly created were covered

MORE HELP FOR PUBLIC GUARDIAN

Operations of the Office of the Public Guardian will be improved with the appointment of an Assistant Public Guardian.

The Public Guardian will also be allowed to appoint auditors and replace the Public Guardian Board with an administrative Advisory Panel





Keen to know why should you make an LPA?Learn more at www.publicguardian.gov.sg
Posted by Lasting Power of Attorney (LPA) SG on Sunday, March 13, 2016






MPs seek more regulation, training for entrusted persons
This includes those appointed as professional donees and deputies after Mental Capacity Act amendments passed
By Kok Xing Hui, The Straits Times, 15 Mar 2016

MPs yesterday welcomed as timely the changes to strengthen the law to better protect those who lose their mental capacity.

But several of them called for more to be done to make sure those appointed as professional donees and deputies to safeguard the well-being of these individuals are properly regulated and trained.

They also wanted to know whether the fees charged by these entrusted persons will be regulated.

"The role as a donee and deputy is a serious obligation and may require the professional to make complex decisions," said Ms Rahayu Mahzam (Jurong GRC), who suggested they be given training.

Responding to MPs during the debate on changes to the Mental Capacity Act, Minister for Social and Family Development Tan Chuan-Jin said he fully agreed with better training and regulation.

"Through that process of a training programme, we can possibly also detect that if individuals are not suitable, we may then not register them accordingly," he said.

Mr Tan also said controlling fees might not be the best way to keep prices affordable. In fact, it might deter competent service providers from taking up such roles.

He added that his ministry will also work with partners to ensure that free or low-cost services and financial assistance is made available to low-income earners, to engage others to safeguard their interests.

Parliament yesterday approved amendments to the Mental Capacity Act to better protect those who lose the ability to make decisions for themselves.

Key changes include the introduction of professional donees and deputies who are paid to make key decisions on behalf of the mentally incapacitated. The courts will also have more powers to revoke or suspend a Lasting Power of Attorney (LPA).

MPs welcomed the pre-emptive provision to revoke an LPA should the donor appear at risk of being exploited. But some wondered whether LPA appointments should be made more stringent.

Ms Denise Phua (Jalan Besar GRC) cited the case of former China tour guide Yang Yin and wealthy widow Chung Khin Chun, saying: "It is alarming that a foreign citizen who is not related to the donor can be granted an LPA that effectively gave him control of more than $35 million of her assets."

Ms Joan Pereira (Tanjong Pagar GRC) said: "It is far better to choose a suitable one than to go through the process of getting rid of an unsuitable donee or deputy."

She asked if a red flag will be raised when a person with children appoints an unrelated donee, and if the donee is a foreigner.

Mr Tan, in reply, said the law must respect the choice a person has made while he has mental capacity. "We may not always agree with the decision, we may think that the decision is unwise, but if they still retain their full mental faculties, that is something that we have to respect," he said.

Mr Tan added that the Office of the Public Guardian will step in only when there is abuse, but the officer should not "act as an arbiter of another's choices".

Ms Sylvia Lim (Aljunied GRC) asked if applications for parents to be appointed deputies for their disabled children can be simplified, citing the high cost of applications.

Mr Louis Ng (Nee Soon GRC) asked if parents can be appointed as deputies by default. Not all parents are suitable for the role, said Mr Tan, citing those who are abusive, or seriously ill.

As for costs, Mr Tan said a pilot project with the Movement for the Intellectually-Disabled Singapore and the National University of Singapore Law Faculty has seen costs average $300 a family, compared with $5,000 if lawyers were involved.

The next phase involves children with special needswho have left school and have other forms of intellectual disabilities and autism.

MPs also called for greater publicity on LPAs, given the low take-up rate. Mr Vikram Nair (Sembawang GRC) said he did a straw poll of some MPs and was sorry to report that none, himself included, had executed their LPAs yet.

Some 20,000 LPA applications have been made since the scheme began in 2010, and over 17,000 have been accepted. Mr Tan said the figure grew from 480 in 2010 to 8,400 last year, but this "is still not enough". He said he would consider a proposal to have Pioneer Generation Ambassadors promote LPAs to the elderly.






Plan ahead with a Lasting Power of Attorney (LPA) today. Visit www.publicguardian.gov.sg for more info.
Posted by Lasting Power of Attorney (LPA) SG on Monday, March 14, 2016







Ministers serve as check and balance to MPs' push for more paternalism
By Janice Heng, The Straits Times, 15 Mar 2016

Seldom has the Government been accused of having too much trust in Singaporeans' ability to make their own decisions.

Which made it all the more striking, in yesterday's Parliament sitting, when officeholders gently rejected MPs' calls for more paternalistic approaches.

Minister for Social and Family Development Tan Chuan-Jin said it clearest: "We respect the choices of a person who has mental capacity."

Granted, he was speaking in the context of the debate on changes to the Mental Capacity Act.

In 2008, the Act introduced the Lasting Power of Attorney (LPA).

This is a legal instrument allowing individuals - known as "donors" - to nominate "donees" to make decisions on their behalf, if and when they are unable to do so.

Among other things, yesterday's amendment Bill aimed to better protect donors from unscrupulous donees - while stopping short of paternalism.

Mr Tan began by setting out three fundamental principles behind the Mental Capacity Act. The first: Respect for donors' choices.

"We cannot assume a donor lacks capacity just because we think he or she could have made a better decision." This extends to their choice of donee, he added.

Not all the nine MPs who spoke in the debate seemed satisfied with that approach. Ms Denise Phua (Jalan Besar GRC) wanted stronger safeguards: audits, whistle-blowing procedures and stricter due diligence in granting LPAs "when the stakes are higher".

Ms Joan Pereira (Tanjong Pagar GRC) asked if there were parameters against which LPA applications are checked.

"For example, if the donee is not closely related or unrelated to the donor despite the donor being married with children, would red flags be raised? What if the donee is a foreigner?" she asked.

Their fears were not unfounded. Hanging over yesterday's debate was the shadow of an ongoing court case in which Chinese national Yang Yin stands accused of manipulating wealthy widow, Madam Chung Khin Chu, to gain control of her assets.

Yang became Madam Chung's donee under an LPA signed in 2011. The LPA was revoked after a court hearing in November 2014.

Mr Tan, too, recognised this case in his opening speech. But his reply to the MPs made it clear that donors' choices remained supreme.

It would not be appropriate for the Public Guardian - who oversees LPA-related matters - to raise red flags just because the donee is a foreigner or not a relative, he said. "The Public Guardian should not act as an arbiter of another's choices."

Here was a government, criticised more often for paternalism than permissiveness, turning down calls for greater intervention.


Proposed changes included tighter rules on displaying cigarettes. Two MPs, both medical doctors, had a more radical idea.

Completely ban the sale of cigarettes to those born after a specific date, suggested Dr Tan Wu Meng (Jurong GRC) and Associate Professor Fatimah Lateef (Marine Parade GRC).

Thankfully, this ultimate example of paternalism - taking choice away completely - was also rejected.

The rationale was a pragmatic one. Senior Minister of State for Health Amy Khor gave practical reasons not to have a cohort ban: It would be easy to circumvent, enforcement would be challenging and costly, and it might not even reduce smoking rates.

It was good to see the Government giving such leeway, at least in the two very specific policy areas raised yesterday - even if, in the case of tobacco, it seemed to be acting more out of pragmatism rather than principle. Doing otherwise - by heeding the MPs' calls - would have seemed at odds with the trend in the Government's policy-making approach in recent years, of seeking to get people to bear greater responsibility for their decisions, while also respecting their choices in more policy areas.

Indeed, one would have thought that MPs would serve as a check on paternalism, rather than its advocate.

In electing politicians, voters entrust them with the power to make decisions on their behalf, where they might lack capacity or expertise.

But where they do have the ability to decide - in their personal and social lives - most would surely not want to give up the freedom to make their own decisions, even if they turn out to be mistakes.





Changes to Mental Capacity Act: Giving a voice to the vulnerable
By Janice Tai, The Straits Times, 16 Mar 2016

Changes to the Mental Capacity Act that came into force on Monday will impact not only older Singaporeans but also everyone else.

Out of the adult resident population of three million, only about 0.7 per cent, or 20,000 people, have applied for a Lasting Power of Attorney (LPA) since the scheme started in 2010 under the Act.

An LPA allows individuals to nominate "donees" to make decisions on their behalf, if and when they are unable to do so.

However, for one reason or another - such as the wrong assumption that the spouse or children will be able to make decisions when the time comes - most people do not apply for an LPA.

So when mental capacity is impaired by an illness or an accident, such decisions will end up going before a law court.

The court may then appoint a deputy - usually a family member - to make decisions for the mentally incapacitated.

However, the rising number of singles and elderly people who live alone or are childless means many people have no one to rely on to be their proxy decision-makers.

So it is significant that changes to the Act will enable professionals such as lawyers or social workers to step in to make those decisions.

Even those with family members now have the option of paying professionals to be their donees.

They may prefer this if they have complex instructions about their care and assets; or if they want to prevent heated disagreements among their loved ones.

Another key change to the Act allows the court to step in earlier if those appointed as proxy decision-makers present a risk of abusing their powers.

This will prevent more vulnerable elderly with sizeable assets from being exploited as Singapore society ages and grows in affluence.

So while the changes in law affect all of us, they also ensure that the most invisible members of our society have a voice and that, with safeguards in place, that voice is legitimate.

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