Angry Doctor

Thursday, March 06, 2008

Mental Capacity Act 6

An update on the draft MCA:


Draft Mental Capacity Bill to be fine-tuned following feedback
By Asha Popatlal, Channel NewsAsia

SINGAPORE: The draft Mental Capacity Bill will be fine-tuned, following feedback from over 140 people and organisations last year, the Ministry of Community Development, Youth and Sports (MCYS) announced in Parliament on Wednesday.

The changes will address issues such as the definitions of what constitute ill-treatment of those who are mentally incapacitated, and who can be empowered to make decisions on their behalf.

The landmark regulation was first proposed last August, and MCYS has explained that under the Mental Capacity Bill, an individual (or donor) can voluntarily plan in advance for a time when he/she may lose mental capacity to make decisions.

Through a legal document called the Lasting Power of Attorney (LPA), the donor can give another person (or donee) the authority to make decisions on his/her behalf regarding matters related to property, finance, and personal welfare, including healthcare.

The donee can be a family member, a relative, a friend or a professional.

Among the changes proposed, the Law Reform Committee suggested that the ministry define more clearly what constitutes ill-treatment and wilful neglect, which the Act criminalises.

The National Council of Social Services (NCSS) also recommended the original list of disqualifying criteria for donees to be removed.

Originally, the list excluded bankrupts and those convicted of offences involving fraud and dishonesty from acting as proxy decision makers for matters related to property and finance.

It also excluded those convicted of any sexual offence, or offences involving violence or the threat of violence.

NCSS' view was that the donor should be given a choice in who he or she would like to appoint, because sometimes the best person to be the donee is a son or relative who may have committed certain offences.

Taking this feedback into account, MCYS said it will remove the disqualifying criteria for donees, except for bankrupts, from the Bill.

MCYS will also expand the list of excluded decisions which a donee cannot make on behalf of the donor. These are: adopting or renouncing a religion; receiving treatment for change of gender; and making and revoking of any nominations made under the Conveyancing and Law of Property Act where insurance policy proceeds are concerned.

The other exclusions are: consenting to marriage or sexual relations; executing, amending or revoking a will; and making or revoking a CPF nomination.

MCYS will amend the draft Bill based on the feedback, and it will publish a code of practice to provide guidance to caregivers and professionals after the Bill is passed in Parliament.


angry doc finds it interesting that the bill will disallow a bankrupt from acting as a donee, but not someone who has a history of violence or sexual offence. It is as if we expect a criminal to be a friend or family first and a criminal second, and not the other way round, or that we allow people to exercise their judgement when it comes to character, but not if the person being judged is a bankrupt. How odd.

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8 Comments:

  • It goes to show how much emphasis Singapore society places on MONEY.

    It also goes to show how severe the price of failure in business and finance leading to bankruptcy is.

    Little wonder why in Singapore we have one of the lowest numbers of entrepreneurs and home grown MNCs in the world.

    Better to be a criminal, sexual offender than to be a bankrupt!

    By Anonymous Anonymous, At March 08, 2008 10:20 am  

  • "angry doc finds it interesting that the bill will disallow a bankrupt from acting as a donee, but not someone who has a history of violence or sexual offence. It is as if we expect a criminal to be a friend or family first and a criminal second, and not the other way round, or that we allow people to exercise their judgement when it comes to character, but not if the person being judged is a bankrupt. How odd."




    "It goes to show how much emphasis Singapore society places on MONEY.

    It also goes to show how severe the price of failure in business and finance leading to bankruptcy is.

    Little wonder why in Singapore we have one of the lowest numbers of entrepreneurs and home grown MNCs in the world.

    Better to be a criminal, sexual offender than to be a bankrupt!"




    GDoc's guesses that the reason behind the NCSS's decision to disqualify bankrupts from acting as donees is to negate the inherent conflict of interest that such a scenario may raise. See below quote:

    "Through a legal document called the Lasting Power of Attorney (LPA), the donor can give another person (or donee) the authority to make decisions on his/her behalf regarding matters related to property, finance, and personal welfare, including healthcare."

    The emphasis is on discharging the duties of the incapacitated individual's PROPERTY & FINANCE. That's probably where the problem lies.

    By Blogger GuinnessDoc, At March 08, 2008 11:55 am  

  • One can argue along those lines certainly that a bankrupt may have financial problems and hence that represent a conflict of interest.

    However we must understand that people who have become bankrupt may still be of very solid character and became bankrupt because of circumstances eg economic downturns beyond their control (even the govt will say USA went into recession what can we do?)

    The question for me is that the donee should be of sound character and integrity.

    To say that a criminal and sexual offender has got a better chance of making fair decisions on the donor's property and finance issues than a bankrupt is making a statement of judgment.

    To put it in another way, if you had to do business (eg hire a property agent, hire a worker etc) would you prefer the criminal and sexual offender over the bankrupt?

    For equality sake both should be on equal footing and leave the decision to the person making the choice. Singapore is indeed a nanny state. Everything protect here protect there.

    By Anonymous Anonymous, At March 10, 2008 12:16 pm  

  • Imagine the situation where I am the donor.

    I have 2 siblings. 1 brother who is a rapist and murderer. The other is a sister who failed in her business and is a bankrupt. As a sibling I know both of them well. I know my brother is a crook and cannot be trust. My sister however is a good person but failed in her business due to the business cycle.

    I have to make a choice on my donee.

    But by law I cannot choose my sister. I have to choose my brother, the criminal between the two.

    How ridiculous does that sound?

    By Anonymous Anonymous, At March 10, 2008 12:18 pm  

  • "I have 2 siblings. 1 brother who is a rapist and murderer. The other is a sister who failed in her business and is a bankrupt. As a sibling I know both of them well. I know my brother is a crook and cannot be trust. My sister however is a good person but failed in her business due to the business cycle."


    These are but 2 possible combinations ("violent & evil", and "bankrupt & good" personalities) in the scenario given above.

    Don't forget "violet & good", and "bankrupt and evil" personalities too. Using the same example. If one had 2 siblings. One is of good character, but, unfortunately, short tempered, leading to bursts of violence. The other is an absolute villian, and a bankrupt.

    GDoc isn't qualified, nor is he in a position to decide on legislature.

    However, GDoc has been around the block long enough to know that there are infinite variations to the human psyche.

    Again, it is GDoc's guess that the people who passed this law had to take into account the vicissitudes of human nature. There would be some issues they could compromise on, and others where they would remain unmoved. While it is true that not all bankrupt donees will default (legally, if the law allows bankrupts to act as donees) with the doner's finances. All it takes is just ONE to default, and the person who allowed bankrupts to act as a donee would be crucified by the family members of the incapacitated individual and the public for not having a fail-safe mechanism in place for such an obvious conflict of interest.

    Certainly, a non-bankrupt donee may still make off with the family fortune. However, the NCSS would not be liable in the eyes of the public.

    GDoc's 2 cents.

    All in all, not a perfect law, but we don't live in a perfect world.

    By Blogger GuinnessDoc, At March 10, 2008 9:18 pm  

  • Incidentally, lots of choices for nominating a donee. See quote below:

    "The donee can be a family member, a relative, a friend or a professional."

    Worst case scenario, nominate a Notary Public.

    By Blogger GuinnessDoc, At March 10, 2008 9:33 pm  

  • Gdoc brings good points to the discussion. Agree with what he says. However with that logic I would say the safer route would be to have both criminals and bankrupts excluded if one fears public backlash on negligence.

    I find it strange that the law makers decided to take the risk on criminals then.

    I wonder why they decided to allow criminals in then?

    Perhaps there are way too many criminals among "family member, a relative, a friend or a professional" such that they had no choice but to remove criminals from the group otherwise there would not be enough donees?

    Why include criminals? What was the stimulus for that change?

    By Anonymous Anonymous, At March 11, 2008 6:29 pm  

  • "However with that logic I would say the safer route would be to have both criminals and bankrupts excluded if one fears public backlash on negligence.

    I find it strange that the law makers decided to take the risk on criminals then.

    I wonder why they decided to allow criminals in then?"


    Yes, GDoc has been pondering on that for some time too. Why indeed?

    GDoc can only surmise that the donees with criminal records are EX-criminals, who have already paid their debt to society. (Note: The original post does not state if these individuals have served their time or not. However, GDoc assumes that they are EX-convicts, as it would be impractical for them to serve as donees behind bars. Could be a wrong assumption, of course)

    Bankrupts (undischarged ones) still have to answer to their OA. Perhaps these people are deemed to be still under obligation?

    GDoc is no expert in jurisprudence. Perhaps some readers who are familiar with the law would care to contribute?

    By Blogger GuinnessDoc, At March 11, 2008 6:50 pm  

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