​​Empowering families through the Lasting Power of Attorney

June 15, 2024

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​​​​​​In an evolving societal landscape, issues surrounding mental capacity have gained prominence. This conversation took center stage at the Association of Private Hospitals, Malaysia (APHM)’s 30th International Healthcare Conference and Exhibition. Esteemed speakers Chong Yue-En, Managing Director at Messrs Bethel Chambers LLC Singapore, and Ahmad Nizam Abbas (pix), Managing Director at Messrs Crescent Law Chambers Singapore, shared their insights. The discussion was moderated by Datin Anit Kaur Randhawa, Partner at Messrs Asbir, Hira Singh & Co. The focus was on Singapore’s experience with mental capacity issues, particularly in the context of its legal framework and cultural practices.

One pivotal instrument discussed was the Lasting Power of Attorney (LPA). This legal provision allows individuals to designate a trusted person, often a family member, to manage their affairs should they lose mental capacity. Chong Yue-En emphasized, "The person making decisions, called the attorney, has to act in a position of trust. It's a judiciary duty. They can't just make decisions on whims and fancies. But in this sense, there is a document empowering them, making things clearer for the family."

In Singapore and Malaysia, both aging societies, the LPA is particularly significant. Unlike in many Western societies, the tradition in Asian cultures is to care for elderly family members at home. This is driven by values of filial piety and gratitude. However, with smaller family sizes and increased life expectancy, caregiving responsibilities often fall on fewer individuals, leading to significant burdens. The LPA offers a structured way to manage these challenges, providing legal backing to those entrusted with such responsibilities.

The Mental Capacity Act: A legal framework for modern challenges
The Mental Capacity Act (MCA), enacted in Singapore in 2002, serves as a comprehensive framework addressing mental capacity issues. This legislation was inspired by various models, including those from Hong Kong, and was designed to fill the gap in pre-planning for mental incapacity. The Act introduces a nuanced approach, shifting the focus from mental disorders to the concept of mental capacity.

Chong Yue-En outlined the MCA's two primary functions. First, it assesses whether an individual can make decisions independently. This involves a functional test to determine their ability to understand, retain, and weigh information. Second, it considers the condition of the mind or brain, acknowledging that mental capacity can fluctuate. For instance, individuals with substance abuse issues or intermittent mental health conditions may temporarily lack capacity but regain it later. The MCA provides flexibility, ensuring that permanent decisions are not imposed based on temporary incapacity.

Key principles of the Mental Capacity Act
The MCA is grounded in several key principles:
  • Assumption of capacity: Every individual is presumed to have mental capacity unless proven otherwise. Clinicians play a crucial role in assessing this, particularly in medical settings where decisions about treatments must be made.
  • Practicable health: Individuals are not treated as incapable unless all practicable steps have been taken to help them understand and make decisions.
  • Unwise decisions: The Act recognizes that making unwise decisions does not necessarily indicate a lack of capacity. The best interest framework considers multiple factors, including the individual's wishes, but balances them against broader considerations.
  • Least restrictive options: Any intervention must be the least restrictive of the individual's rights and freedom. This principle is particularly relevant in home care scenarios, where the challenge is to keep dementia patients safe without overly restricting their freedom.

Challenges in medical and financial decision-making
One significant issue discussed was the lack of clear legal provisions for proxy decision-makers when individuals lose mental capacity. This gap creates complications in medical and financial matters. Hospitals face challenges in recovering debts from patients who lack capacity and have no family members to manage their affairs.

Chong Yue-En highlighted the MCA's role in addressing such situations. "Sometimes we go to the estate when the patient passes away and then try to ask the estate to pay up the debts for the hospital. The MCA introduced a regime to help in these situations, synchronizing with self-ownership of one's medical experience."

The role of Advanced Medical Directives
The Advanced Medical Directive Act (AMDA) complements the MCA by allowing individuals to articulate their preferences for end-of-life treatment. This document ensures that their wishes are respected even when they can no longer communicate them. Singapore's approach excludes the option for life-sustaining treatment under the MCA, as this is covered by the AMDA. This separation helps clarify the legal landscape and provides a structured way for individuals to plan their medical care.

Professional deputies: Ensuring care for the vulnerable
In cases where individuals lose mental capacity without appointing a proxy, the court can appoint a professional deputy. These professionals, often lawyers or social workers, manage the individual's affairs in accordance with the court's directives. Chong Yue-En shared a personal experience: "When I was a professional deputy for a couple that lost mental capacity, we arranged for medical treatment and managed their financial affairs. By the time the gentleman passed away, he had regained some mobility through our interventions."

The role of professional deputies is crucial in ensuring that individuals without family support receive appropriate care and their affairs are managed responsibly.

Insurance bonds and safeguards
One common concern is the potential for abuse of the LPA by the appointed attorney. To address this, insurance bonds can be purchased, providing financial protection if the attorney acts dishonestly. This mechanism ensures that the individual's assets are safeguarded, and any misappropriated funds are reimbursed.

Inclusivity and the Muslim community
The MCA applies uniformly to all Singaporeans, regardless of religion. Muslims can appoint a donee (attorney) of any faith. Ahmad Nizam Abbas clarified that an LPA does not affect Islamic inheritance laws (Fara’id), as it is only valid during the person's lifetime. "The LPA doesn’t affect the Fara’id as it is done when the person loses mental capacity and is still alive. However, the Will only takes effect after the person’s passing."

Singapore's Majlis Ugama Islam Singapura (MUIS) plays a vital role in advising on Islamic issues. The Fatwa Committee, comprising scholars and experts, has ruled that the LPA is in line with Islamic principles. This ensures that the Muslim community can utilize the LPA without conflicting with their religious beliefs.

Types of LPA and public awareness
There are two types of LPA: LPA-1, a simple template, and LPA-2, which requires a lawyer's involvement. The Office of the Public Guardian (OPG) oversees the LPA process, ensuring compliance and protecting the interests of vulnerable individuals. Public awareness campaigns, including sermons in mosques, encourage families to prepare LPAs to avoid future difficulties.

Balancing legal, cultural, and practical needs
As societies age and family structures evolve, the importance of legal frameworks like the MCA and LPA becomes increasingly evident. These instruments provide a structured way to manage mental capacity issues, ensuring that individuals' rights are protected and their wishes respected. They also alleviate the burden on families and healthcare systems, offering a clear legal path for managing the affairs of those who lose capacity.

The question remains: How can we continue to refine and improve these legal frameworks to better serve our aging populations and diverse cultural contexts? The experience of Singapore provide valuable insights, but ongoing dialogue and adaptation in Malaysia is crucial to meeting the needs of our communities.

As we consider these issues, what measures can we take to ensure that our legal and healthcare systems are equipped to handle the complexities of mental capacity in an aging society? How can we balance the rights and needs of individuals with the practical realities of caregiving and medical decision-making? The answers to these questions will shape the future of mental capacity management in our societies.

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