Photo by Ryoji Iwata on Unsplash
Preparing for mental incapacity is not an enjoyable thought. It requires you to deal with your fear of growing old and being incapable of doing even the most basic things, both physically and mentally.
Nevertheless, in doing your legacy planning, it is best to make arrangements to ensure your welfare when you are no longer able to make sound decisions for yourself.
What is mental capacity? It is one’s ability to make sound decisions for themselves. It means freedom from disabilities or illnesses that affect one’s mental health, memory or learning capabilities.
In Singapore, the Mental Capacity Act protects the rights of persons with impaired minds and those suffering from a disturbance in the functions of the brain.
How can I legally protect myself from mental incapacity?
The Mental Capacity Act allows a person to make a lasting power of attorney (LPA), wherein they appoint another person (donee) to make decisions on their behalf.
Why is legacy planning important in this case? These decisions delegated to your donee may pertain to your personal welfare, property and financial affairs. It is best that they are someone you trust with these matters.
For it to take effect, the LPA form has to be signed in the presence of a certificate issuer (lawyer, registered psychiatrist, medical practitioner). The form then has to be registered with the Office of the Public Guardian under the Ministry of Community Development, Youth and Sports.
What happens if I lose my mental capacity without an LPA?
In situations wherein a decision is necessary but you are under mental incapacity, the court will either make the decision on your behalf or appoint someone to be the deputy who will make the decision for you.
A court order will specify the type of actions and decisions a deputy can make. As an appointed deputy, they have to follow the court’s directions and cannot exceed the scope of authority as laid down by the court.
They will also not be able to delegate the authority or responsibility to another person. There are times the deputy may be required to provide reports to the Public Guardian to make sure that there is no abuse of power.
When is a person considered to be under mental incapacity?
After defining what is mental capacity, we can now establish the meaning of mental incapacity.
The most basic definition of mental incapacity is the inability to make a decision for one’s self. This is further characterized by the mental incapacity law as the lack of the ability to:
- understand the information relevant to the decision;
- retain that information;
- use or weigh that information as part of the process of making the decision; or
- communicate his decision (whether by talking, using sign language or any other means).
Who should I choose as my donee?
The mental incapacity law requires your donee to be at least 21 years of age, not bankrupt, and of sound mind. You can choose to have more than one donee and specify whether they should act jointly (together) or jointly and severally (either together or separately).
What other steps can I take to protect myself from mental incapacity?
Aside from naming your donee, you may want to request your loved ones to look out for you in case of mental incapacity. The mental incapacity law in Singapore guards against the abuse of power by a donee or deputy.
If your loved ones suspect anything, you can ask them to report any type of physical, sexual, emotional, and financial abuse to the authorities. Those who are found guilty of ill-treatment of a person who lacks mental capacity will be subject to criminal charges.
Ultimately, all of us will advance in age, but not everyone will have to undergo mental incapacity. Be that as it may, it is still best to be prepared, understand what is mental capacity, and look out for your future.
If you are considering other ways to protect your legacy, you can also look into what is legacy giving and review your family business succession planning.
Here at Kith & Kin Law Corporation, we commit to provide the best approach to our client’s personal circumstances. With our expertise on Mental Incapacity Singapore, we will be able to help you prepare the best legacy plan according to your requirements.
Send us a message so we can schedule a discussion with you.
