Debated in Parliament on 5 Jul 2021.
Order for Second Reading read.
Mr Deputy Speaker, on behalf of the Minister for Social and Family Development, I beg to move, that the Bill be now read a Second Time.
Sir, the Mental Capacity Act (MCA) has been enacted for more than 10 years now. The MCA allows for Lasting Powers of Attorney (LPAs) to be registered with the Public Guardian. The LPA is a legal instrument through which a person, called a "donor", appoints one or more persons, called "donees", to make decisions on the donor’s personal welfare and/or property and affairs, should the donor lose mental capacity in the future to make such decisions. The MCA also allows the Court to appoint a person, called "deputy", to make certain decisions on behalf of a person who lacks mental capacity but has not made an LPA. The key difference between a donee and a deputy is that a donee is appointed by the donor when he or she has mental capacity, while a deputy is appointed by the Court after the person has lost mental capacity.
The pandemic has shown that life can be unpredictable. We never know when events that could result in the loss of mental capacity, such as accidents and diseases, may strike. Making our LPAs early offers peace of mind for ourselves and our family. For example, Mr Low Kim Leng, a 69-year-old retiree, and his wife made their LPAs after witnessing how the LPA ensured that the affairs of their relatives with dementia were well taken care of.
Mr Francis Ng, a 60-year-old semi-retiree, also attested to the importance of making an LPA early as this would help his family avoid the stress and costs of applying to the Court for a deputyship order. He shared that because his father had not made an LPA before losing mental capacity, he was unable to manage his father’s Housing and Development Board (HDB) property on his behalf.
Instead, he had to apply to the Court to be appointed as a deputy and reflected that the process was very stressful as it was long and tedious, in addition to having to care for his father. Unfortunately, his father passed away before the deputyship application was granted. Now, he urges his peers to make their LPAs as soon as possible.
Many Singaporeans appreciate the importance of pre-planning. Already, we have more than 120,000 LPAs registered as of May 2021. This is a good sign. To encourage more Singaporeans to sign up and pre-plan, we have waived the $75 fee for LPA Form 1 applications by Singapore Citizens until March 2023. This means Singaporeans need not pay any application fee when making their LPAs during this period. They will need to pay for the LPA Certification service, which is about $50 or less, based on rates charged by those found on a list of the top 10 most visited doctors who are serving as Certificate Issuers as at January this year.
LPA Form 1 is the standard LPA form used by 98% of donors to confer on their donees the power to make decisions on the personal welfare and/or property and affairs of the donor. The remaining 2% use LPA Form 2, which require lawyers to draw up the specific and customised powers to be granted by the donor.
In preparing for this Bill, we have sought feedback from the legal and medical sectors, as well as members of the public. They have provided valuable insights and they are supportive of the amendments we are proposing.
Let me draw the attention of this House to two key amendments proposed in the Bill.
Firstly, the Bill will make it possible to create and execute LPA instruments electronically. Clause 3 of the Bill introduces a new Part IIIA on matters pertaining to the establishment and operations of a new electronic transaction system, OPG Online or OPGO. New subsections (5) to (14) of section 11, which are inserted by clause 4 of the Bill, will allow us to recognise an electronic copy of an LPA registered prior to the launch of OPGO to be free from error and to be treated as the lasting power of attorney, if certain conditions are met. Other transactions such as the filing of a Deputy Report with the Office of the Public Guardian will be lodged via OPGO as well. This is in line with the Government’s commitment to harness technology to better serve Singaporeans and so that all donors and donees can reap the benefits of going digital. We will support those who are less tech savvy so that the gains will be enjoyed by everyone.
Secondly, to better protect donors against the risk of fraud, a new section 31A inserted by clause 12 of the Bill provides that if the Public Guardian has reason to suspect that fraud or undue pressure has been used to induce a donor to execute an LPA or appoint a particular person as his or her donee, the Public Guardian may disclose to the donor: one, the number of LPAs which have appointed the person as donee; and two, the number of applications that are pending before the Public Guardian for the registration of an instrument which appoints the person as donee.
LPAs today are made and executed in hard copy. To this end, we can do better. For example, Dr Sin Yong, a Certificate Issuer who certifies that a donor has mental capacity to make an LPA, shared that doing away with hard copies could reduce the hassle of passing around paper forms. Indeed, by enabling LPAs to be made online, there will be greater convenience, efficiency and security for our citizens. Let me illustrate.
First, donees will be able to accept their appointments more conveniently. Donees will not need to append their wet-ink signatures before a witness or to affix physical seals on the LPAs. Instead, donees will be notified of the donor’s intention to appoint them via SMS and email. They can then log on to OPGO via Singpass to accept the appointment. This is especially beneficial if donees are overseas and unable to return to Singapore to do so.
We will also legally recognise electronically signed LPAs as deeds. Currently, hard copy LPAs must have wet-ink signatures appended and seals affixed by the donors to be executed as deeds. Going forward, the donor will sign the LPA using his National Digital Identity in OPGO in the presence of a Certificate Issuer, instead of appending wet-ink signatures and affixing seals. Certificate Issuers can be accredited medical practitioners, practising lawyers and registered psychiatrists. The new section 12A of the Act inserted by clause 6 of the Bill sets out the requirements for the LPA to be executed electronically as a deed.
Second, digitalisation will cut the time taken to complete and register an LPA. With built-in system checks and validations, most online LPA applications can be immediately processed upon submission. This is a substantial time saving compared to the current three weeks processing time. A handful of cases may require manual processing, that will take about eight working days. To be clear, there will still be a three-week waiting period allowing for any objection to the registration of the LPA to be raised. This three-week window starts from the date the Public Guardian notifies the donee or donees of the acceptance of the donor’s application to register the LPA. If there are no objections at the end of this three-week waiting period, the Public Guardian will register the LPA instrument. On a related note, we will also tap on Singpass to retrieve personal information via MyInfo. This auto-populates the donor’s particulars into the online LPA, thus increasing the ease of making an LPA.
Third, robust measures ensure that the LPA is properly made by the donor and not by an impersonator. In this regard, we have retained the critical requirement for the donor to execute the LPA before a Certificate Issuer. Under paragraph 2(1)(e) of the First Schedule to the Act, the Certificate Issuer will need to certify that the donor understands the purpose of the LPA and the scope of the authority conferred under it, and the donor is not under undue pressure or duress to make the LPA and that there is nothing else which would prevent the LPA from being created. The Certificate Issuer must be satisfied that these conditions are fulfilled before the Certificate Issuer may certify the LPA.
Both the donor and Certificate Issuer will sign using a secure electronic signature, which is enabled by the National Digital Identity, before submitting it online for processing. Electronic LPAs that are easily retrievable will also reduce the risk of damaging or misplacing hard copy LPAs.
Finally, OPGO will serve as a one-stop electronic transaction system for all transactions with the Office of the Public Guardian. Donors and donees will be able to easily access the registered LPA in OPGO. When transacting with third parties on behalf of the donor, donees may request for the Office of the Public Guardian to send an electronic copy of the LPA to the third party. This assures third parties that the LPA is indeed the true and latest version. Additionally, individuals will be able to conduct online LPA searches and, subject to approval, request for certified true copies of the registered LPAs via OPGO.
Filing deputyship reports will also be made easier via OPGO. For example, deputies can use an online finance tracker to manage the incapacitated person's income and expenses. Certain fields in the reports will also be prefilled with information from court documents, the previous year's report and the finance tracker. Deputies will not have to manually complete their reports or compile their supporting documents. Instead, they can focus on caring for their incapacitated loved ones.
We want all donors and donees to benefit from digitalisation and this includes those who have registered their LPAs before the launch of OPGO. The Office of the Public Guardian will make available electronic copies of all existing LPAs on OPGO. The risk of error in transferring these existing LPAs onto OPGO is low as there is neither extraction nor entry of new data.
Nevertheless, we will send a notice to all existing donors and donees via registered post, requiring them to verify the accuracy of the electronic copy on OPGO against their registered LPA. Under the new section 11(7), they will be given 90 days after the date of notice to notify the Public Guardian of any error. If the donor has lost mental capacity, any donee may notify the Public Guardian on his, or her behalf.
Under the new section 11(12), if the Public Guardian is not notified of an error, the electronic copy will be treated as the LPA after the end of the 90-day period. If there is a notification of error within the 90-day period, the electronic copy will be treated as the LPA on the 91st day, or the day on which the Public Guardian rectifies the error, whichever is later. This is to allow donors and donees to fully benefit from having the entire 90-day period to notify the Public Guardian of any error.
I would like to assure Members that errors discovered after the 90-day period can still be rectified by the Public Guardian. This is provided for under the new section 15A of the Act which is inserted by clause 9 of the Bill. Nevertheless, I strongly encourage all donees and donors to make the necessary verifications within the 90-day period.
Under paragraphs 7(4), 17, 18, 19 and 20 of the amended First Schedule substituted by clause 17 of the Bill, the Public Guardian is required to attach a note to an LPA on the occurrence of certain events. Such events include the bankruptcy of the donee, which terminates the donee's authority in relation to property and affairs, and the donee's loss of mental capacity, which terminates the donee's appointment.
All such notes will be attached to the electronic copy of the LPA in OPGO. As such, the electronic copy of the LPA in OPGO will be the most up-to-date copy.
Third parties transacting with donees should ask for the electronic copy when verifying the donee's authority. The Office of the Public Guardian will send the electronic copy to the third party through OPGO and upon the donee's request. In the unlikely event that there is an error in the electronic copy, the new section 16A of the Act which is inserted by clause 10 of the Bill, protects the donee if he or she had relied on the electronic copy without knowing of the error and protects any third party, if the third party had transacted in good faith and without knowledge of the error.
Let me now turn to an amendment that aims to enhance the protection of donors. There had been concerns about the exploitative behaviour of donees in past discussions of the Mental Capacity Act. Such cases form a very small minority and we had amended the Mental Capacity Act in 2016 to put in place pre-emptive actions. For example, the Court may under the existing section 36A(3) of the Act, suspend the donee, or deputy's powers. If he or she has engaged in conduct affecting his or her suitability to be a donee or deputy and there is a risk of dissipation of the incapacitated persons assets. But we can do more to protect the donors proactively even before an LPA is registered.
There may be rare instances where a person attempts to unduly influence many donors to appoint him or her as their donee. The donee may stand to gain if any or all of the donors lose their capacity. Some donees may also fail to disclose their multiple appointments to donors who might take that into consideration.
To safeguard against such risks, the new section 31A of the Act, which is inserted by clause 12 of the Bill allows the Public Guardian to interview the donor and disclose certain information if she suspects that fraud or undue pressure has been used to induce the donor to make an LPA or appoint a person to be his or her donee.
Only the number of LPAs for which the prospective donee has already been appointed or intends to be appointed may be disclosed. No other confidential information such as the names of the other donors will be given. However, this alone should suffice for the donor to pause and reconsider the choice of his or her donee.
Further, if the Public Guardian has reason to suspect that fraud or undue pressure has indeed taken place, she may exercise her supervisory and investigative functions, for instance, by applying to the Court under the existing section 17 of the Act to determine if the LPA should still be registered. This amendment will not apply retrospectively to LPAs registered prior to the amendment.
I am mindful that some of us may be less comfortable navigating online services. MSF will provide support and work with our community partners to ensure that assistance is readily available. Today, almost 90% of the donees are the donor's immediate family members, of which more than 60% are below 50 years old. This is promising as it indicates that family support is strong with many donees often helping their older relatives to fill up the hard copy LPAs. As we roll out OPGO later this year, I am confident that many Singaporeans will continue to rely on their family to assist with their LPA applications online.
To facilitate this, we have designed OPGO to leverage the multi-user SMS two-factor authentication, or 2FA service provided by Singpass. Elderly users who do not know how to log on to OPGO via Singpass may opt for the SMS one-time PIN, or OTP, to be sent to the child's mobile phone number. The child would then be able to help the elderly log on to OPGO via Singpass.
We will make OPGO as user-friendly as possible. Videos and resource guides will be incorporated into the system to guide users in the completion of their LPAs online. This includes text-to-speech functions for the visually impaired. The online guides, videos and instructions will also be made available in vernacular languages. Members of the public who need help may also set up an appointment for one-on-one consultation at the Office of the Public Guardian.
We will work closely with our partners to ensure that help is accessible at various community touchpoints. Individuals may approach their nearest Citizen Connect Centre located at selected Community Centres or the Public Service Centre, or PSC, at Our Tampines Hub. We also welcome other community partners to work with us to bring more on board as we begin this digitalisation journey.
Electronic submissions of LPA applications will be the norm to ensure that the public reaps the full benefits of digitalisation. But there may be exceptional circumstances that warrant the use of a hard copy form which are specified in the new section 10C(2) of the Act inserted by clause 3 of the Bill. For example, where personal circumstances or physical disability of the donor and/or donee results in their inability to make or sign the instrument using OPGO.
Other instances include cases where the donor or donee is ineligible for a Singpass account if he or she is not a Singapore Citizen, Permanent Resident or long-term resident. We will also allow hard copies submissions if there is a severe and prolonged system outage.
Sir, the pandemic has highlighted the importance of pre-planning for exigencies. This includes the very real risk that we may one day lose our mental capacity. It is wise to pre-plan and have peace of mind knowing that we have entrusted our well-being to a person who will act in our best interests should the need arise. Making our LPAs early will also make the caregiving journey less stressful for our loved ones, who will be spared the stressful and costly process of obtaining a Court order to be appointed as deputy.
We will walk this journey with our citizens to ensure that everyone can take advantage of OPGO and it is my hope that Singaporeans will leverage this digital transformation to make their LPAs safely, conveniently and expediently. Mr Deputy Speaker, Sir, I beg to move.
*Question proposed.*
Mr Deputy Speaker, Sir, under the Mental Capacity Act (MCA), provisions can be made for individuals who lack capacity to manage their affairs. This Bill amends the MCA so as to establish a simplified electronic process for the creation of Lasting Powers of Attorney, which allow individuals to appoint persons to make decisions on their behalf should they lose their mental capacity to do so themselves. It is certainly a useful legal instrument that was introduced in 2010.
But the number of persons who have made it is not high. As of 2018, only about 23,000 Singaporeans above 65 have made their LPA. This low number could be due to a number of reasons. One often incited is a stigma about speaking about death. Understandably, we might not be comfortable discussing the possibility that we will be unable to make decisions for ourselves.
Talking about end of life matters is still seen as a taboo or inauspicious for some. It is human nature. We say we will do it, but most of us will procrastinate and end up not doing it. These are important matters, whether it is making a will or LPA, but we do not pay enough attention to it.
Some years ago, my wife and I finally accompanied each other and we did both. Since then, I could say so to a lot of people, with stronger conviction, whether it is to friends or residents, why they should do it and do it now, not tomorrow. We do this certainly not for our sake, but for the people that matter to us – our family and loved ones.
In the long term, with an ageing population, these conversations will increase in frequency whether in public forums or private spaces. As unpleasant as the possibility may be, in the event that someone can no longer make their own decisions, an LPA empowers their close relatives to act on their behalf, for elderly individuals or couples without family support, the Professional Deputies and Donee Scheme provides a source of potential donors for an LPA.
Another reason for the low numbers might be a lack of public awareness. MSF has been promoting LPA through Community Centres, Senior Activity Centres and radio channels. However, members of the public might be unfamiliar with what an LPA entails or are confused by the decisions needed: what powers to grant donees whether multiple donees should act jointly or separately, and so on?
For this, we will need to step up our outreach and publicity efforts. Although events and roadshows are good idea, awareness tends to fade if they are not sustained over time. Furthermore, the effectiveness of in-person events may be limited by evolving safe distancing measures.
Last, I think perhaps the most likely is just a lack of attention. Our bias is to ignore the long term or to shy away from thinking about difficult topics. This cannot be fixed by more public dialogues or information and education. It requires each of us to decide for ourselves that we need to be responsible and aware of our own mortality and to prepare for it.
LPA is certainly a useful instrument which deserves to be better known and more widely used. At the same time, even as we promote its use, we should see its limitations.
Under the MCA, a donor can confer on the donee the authority to make decisions regarding the donor's welfare, property and affairs if the donor becomes unable to make these decisions themselves. Currently, the process requires the hardcopy of all documents and physical meetings between donor and donee.
For most of us, we will find making LPAs digitally much easier and more convenient. With the amendments, parties do not need to physically meet up to sign and exchange documents. The use of Singpass also means that the user's details are automatically entered, making it more convenient for LPA to be made while not compromising on data security.
However, I do have the following concerns on the proposed amendments to the Act.
First, it concerns access. We need to ensure that those who are less tech savvy are not left behind. As mentioned earlier, the elderly are a prime target audience for LPA to be made. Yet, many of them may be unfamiliar with the tools or even terminology that is used.
For example, they may not know how to navigate the Singpass app or website with the two-factor authentication. While Singpass now allows users to sign into family members' accounts, not all elderly have family members on hand to help them.
Yes, MSF will assist those who have difficulty navigating the OPGO system by making Internet-enabled devices and trained staff available at community centres (CCs). This ensures that people do not have to venture beyond their neighbourhoods, making the process quick and easy. However, not all CCs will have these facilities. For those who need help, travelling further to an unfamiliar place may greatly discourage them. In fact, I know it does, especially for the elderly. If help was available at all CCs, I am quite sure it would lead to a greater take-up rate.
Sir, I hope the Ministry can consider this suggestion. Yes, I recognise that more resources will be required but I believe it will be monies well spent.
Still, even with various forms of assistance and accessibility measures, the five steps of the OPGO process may be hard to track, with multiple notifications and confirmations. For this, giving donors a physical checklist of the steps involved and the stage they are at – similar to reminders on vaccination cards – may be useful.
Next, I want to touch on scams. Besides improving accessibility, with more services and applications transitioning online, we also need to watch out for scams, which are getting increasingly sophisticated.
For now, there are safeguards in place such as Singpass users being prompted to verify the authenticity of websites before logging on. However, scams are getting more complicated, with fake websites resembling other Government agencies' websites being reported. We must keep our guard up and prevent such scams.
Some elderly individuals or those who are less tech-savvy might request friends or family members to help them with their submissions. I think this is quite normal in the course of business. While the majority of such cases will be safe, there could be those who abuse their trust and appoint themselves as donee. I would like to know what safeguards are in place to ensure that the donee appointed is the one intended by the donor.
Additionally, the current proposal's "default setting" is to treat the e-copy of the registered LPA in OPGO as free from error and as the LPA if there is no notification of any error within 90 days.
While this method might be administratively expedient and help save time, and certainly it does, given that this is such an important document, I think we should instead make it an affirmative confirmation by the donor that all details are correct; that is, to ensure that the consent is active consent. The security and sanctity of the LPA are worth the increase in administrative work, in my opinion.
Finally, I am heartened to hear that there are safeguards in place should there be reason to suspect that someone was pressured or deceived into making an LPA, especially if the donor lacks mental capacity. In such cases, the Public Guardian can disclose to the donor the number of LPAs for which their prospective donee has already been appointed to allow them to make a more informed decision.
This safeguard, I feel, can be made stronger. We should not subject the Public Guardian to such a heavy responsibility. The Public Guardian should not really have to exercise judgement about when to step in. Instead, as long as the donee is a multiple nominee, I think this must be disclosed to the donor. With the disclosure, the donor can then decide if he or she wants to continue making the LPA with this donee.
In the long run, as we improve access and strengthen safeguards against abuse of the process, hopefully more people will make an LPA. Notwithstanding these suggestions, I support the proposed amendments.
Ms Sylvia Lim.
Mr Deputy Speaker, I declare that I am a lawyer who is involved in the issuance of Lasting Powers of Attorney (LPAs). I have also had personal experience as a court-appointed deputy of a mentally incapacitated person.
Sir, the primary purpose of this Bill is to enable the Office of the Public Guardian to establish an electronic transaction system to facilitate the execution and registration of LPAs and other documents. I am generally in support of this Bill, which promises to make it more convenient for the public to execute LPAs and register them instead of needing to print and submit wet-ink documents to the OPG.
Another group of persons who would benefit are court-appointed deputies who will also be able to transact online with the OPG and retrieve information more easily. There are also provisions to alert donors of suspicious circumstances surrounding the intended LPAs, which are well-intentioned.
Even if the move is to go online, the Ministry has decided to retain the requirement for an LPA donor to appear in person before the Certificate Issuer. While some have called for this requirement to be done away and to allow donors to appear remotely, I disagree.
The in-person appearance is important as it will enable the Certificate Issuer – whether a lawyer, a psychiatrist or a credited medical practitioner – to make some assessment as to whether the donor is making the document out of free will. In comparison, having the donor appear online may be convenient. But online certification also carries a higher risk that there are unseen persons or forces adding pressure to the donor to execute the document.
Similarly, out of caution, the Government has decided not to expand the category of professions who can issue LPAs. Again, I agree that caution is warranted.
We have already seen hostile litigation among family members over LPAs, with lawyers and doctors dragged in to justify their assessments of whether the donor was mentally capable or incapable at various points in time. It is prudent not to include other suggested groups like religious and grassroots leaders without much more consideration.
Sir, the Bill will mandate that LPAs be executed and registered digitally from now on and reports by deputies be filed online. As with all things digital, there are concerns about those who would find it difficult or even oppressive to do so and how we would need to include them in the implementation of the OPG online. The Member of Parliament for Sengkang GRC, Mr Louis Chua, will elaborate on this while my colleague in Aljunied GRC, Mr Leon Perera, will offer his suggestions for some reforms for the future.
For my part, I wish to seek clarifications about three clauses in the Bill: the proposed section 10(C)(2), clause 12 and clause 17(2).
First, the proposed section 10(C)(2). This will allow the Public Guardian to provide alternative ways to transact with its office if the transaction cannot be carried out through the online system and "due to a person's physical disability or other circumstance or because the system is unavailable or for any other reason."
It would be useful for the Ministry to elaborate on the scope of these exceptions. When we say a person is unable to use the system due to physical disability, are we referring to a person who cannot use his fingers to key in a digital identification or who is visually impaired? What is the scope of the wide phrase "for any other reason"? Would this include, for instance, persons who are hospitalised or incarcerated?
Second, clause 12 will give new powers to the Public Guardian to interview the donor. The new section 31A provides that the Public Guardian may require the donor to appear before him if there is reasonable cause to suspect that fraud or undue pressure was used to induce the donor to execute the LPA or to appoint a particular donee. It is further stated that one of the grounds for such suspicion is the number of LPAs registered or pending registration with the same donee.
Sir, this provision is well-intentioned but raises a few questions. Although it is stated that the Public Guardian can require the donor to be interviewed, it is not stated what the consequence will be if the donor does not attend. This could happen for innocent reasons like not being physically mobile. What will the Public Guardian do in that circumstance?
Earlier, the Parliamentary Secretary mentioned that the Public Guardian might apply to Court for a decision on whether the LPA should be deregistered. Could he clarify, for example, whether the Public Guardian might even decline to register the LPA in the first instance?
Next, on what basis would the Public Guardian find reasonable cause to suspect fraud or undue pressure? Will the Public Guardian largely rely on information given to it rather than initiate its own investigations?
Third, the Bill specifically suggests that being a donee in multiple LPAs is a suspicious circumstance. How will this operate in practice? For example, if I am named a donee by three family members, will that be considered suspicious? Indeed, the likelihood of family members appointing the same donee is increasing as many of us need to assist elderly relatives who are unmarried or childless.
Finally, clause 17(2) of the Bill will facilitate the Public Guardian in giving special approval for LPAs to be executed remotely. This may be allowed with prior approval if the Public Guardian is satisfied that there is "good reason" why the donor cannot appear physically before a Certificate Issuer to execute the electronic document.
Given what we have discussed about the risk of not appearing in person before the Certificate Issuer, it will be useful to know what scenarios are being contemplated as constituting good reasons. Indeed, the Ministry has stated in its public consultation summary that exceptional circumstances will need to be shown. Could the Parliamentary Secretary elaborate on these circumstances? For example, does it include situations where donors are overseas for long periods of time? Sir, I look forward to hearing the Ministry's responses to my queries.
Ms Denise Phua.
Deputy Speaker, Sir, I support the proposed amendments to the Mental Capacity Act.
The amendments primarily provide for Lasting Power of Attorney (LPAs) to be made and registered online through the formation of an what the Parliamentary Secretary calls OPGO, an Office of the Public Guardian Online electronic system.
There are good reasons for this change: (a) to cope with the rising LPA volume, which has increased nine-fold from 2,681 in year 2014 to close to 25,000 in 2019; (b) to enable a faster and more convenient process – the change removes the need to physically print and submit hardcopies or affix wet-ink seals and signatures currently need for LPA deeds; (c) and the third good reason, the proposed amendments provide for new features to better store, search and retrieve electronic LPAs versus hard copy LPAs. New safeguards to check on donees and cybersecurity features are also added.
These changes bode well for Singaporeans who were previously deterred by the longer and more cumbersome process and especially for those who are IT-savvy and who can self-help. However, I would like to highlight four concerns which I hope the Ministry can address.
Concern number one: the underlying inertia of Singaporeans in making an LPA.
Sir, I fear that the amendments will not address the underlying cause of inertia of Singaporeans in making an LPA. Despite the encouraging increase in the number of LPAs registered – more than 20,000 annually in recent years – the total number remains relatively low compared to the population which is eligible.
The data bears testimony, supports this concern. More than one million Singaporeans are above the age of 55. More Singaporeans are expected to be hit by dementia or loss of mental capacity gradually. In a 2015 study conducted by the Well Being of the Singapore Elderly or WiSE led by the Institute of Mental Health (IMH), one in 10 people aged 60 and above may have dementia. In 2018, ChannelNewsAsia ran an article featuring more Singaporeans being diagnosed with dementia at an even younger age and even younger age.
There is clearly an increasing number of Singaporeans at risk of losing their mental capacity. There is also an inertia to take the initiative by many to apply for an LPA. So, even if the expected number of LPAs is expected to rise to more than 30,000 with the proposed amendments, there is still a large pool of Singaporeans who need more than a nudge.
A more aggressive and robust communications and outreach plan is in need. The current video example available to MSF and the other measures are obviously not enough.
So, I strongly advise the development and implementation of a comprehensive communications and outreach plan covering: (a) different target audiences with demographics and so forth; (b) analyses of their communications style, the language, channels of communication; (c) ways by which they can be reached through an effective marketing mix or communications mix of TV, radio, print, grassroots workshops, volunteer workshops and incentive programmes.
Concern number two: the vulnerable and the need to include and protect their interests.
Sir, some members of society who most need an LPA are the least likely to apply for an LPA. They may be the less educated, not defined by one’s paper qualifications, who may not understand the concept or need for an LPA. They may be the less technically savvy who are averse to the use of Singpass, electronic signatures and so forth. In an IMDA survey of 2019, it was revealed that 58% of residents above age 60 are Internet users compared to 89% for all residents – a percentage-point difference of about 30%.
Then, there are persons with disabilities who are differently abled and they are different. Some may have mental capacity but will still need help to understand and complete the process of LPA application and registration. Some may not pass the test for full mental capacity as stated in MCA. For example, that is to understand, to be able to retain information, to weigh decision and to communicate. They and/or their caregivers will need advice and guidance on whether LPAs are relevant or whether deputies should be appointed to protect them.
There is an obvious need to seriously invest in a track for the vulnerable. I suggest that the Ministry considers the following options to ensure that the vulnerable are included and protected.
One, to set up specific LPA clinics at the major community centres staffed by trained professionals with technical knowledge and/or language fluency that is required. Much like the vaccination centres albeit at a smaller scale. These can be permanent for bigger towns for longer period or they can be mobile LPA clinics to serve smaller precincts.
And second is to consider adopting a parallel run allowing for a co-existing physical and online system until our nation is more ready to go fully online in this matter.
Concern three: Certificate Issuers.
One important party to the process of LPA application is the Certificate Issuer or CI. The CI is a witness for the donor and certifies that the donor has the capacity to make an LPA and that there is no fraud or undue influence used to induce the donor to make the LPA. The current Act states that the LPA CI must be either one, a medical practitioner accredited by the Public Guardian; or a practicing lawyer; or a registered psychiatrist. Just three professions.
Findings in countries such as Hong Kong, for instance, have shown that many do not approach these professionals for various reasons: the cost or the perception of the cost; and the fear or discomfort of approaching or interacting with these experts.
Legislation in England and Wales, of which the Singapore MCA is modelled after, provides for a "Certificate Provider" to be someone a donor knows well. So, I think that is a bit broad and general and I do not support that. But they also include professional persons such as one of the following: either a registered healthcare professional; a solicitor, barrister or advocate; a registered social worker; or an independent mental capacity advocate. So, the professional pool is larger than that in Singapore.
Whilst technical qualification is a proxy of a CI’s competency, it is only one of several competencies required of a good CI. A responsible CI should be able to and is interested in detecting the donors who are vulnerable, unduly pressured or influenced into giving power to certain donees. Why, for example, can certified, accredited social workers or psychologists not be accredited by the Public Guardian? Why can they not be included in the pool of CIs, so that the pool can be enlarged for choice by the donor? I recommend that the pool of CIs be enlarged.
Concern four and the final concern: families of persons who lack or lost mental capacity and are without LPA.
Sir, as a Member of Parliament, I am deeply concerned for my adult residents who are incapacitated, due to old age or birth or accident and so on, or have become incapacitated but they all are without an LPA. They and their families who have to decide on their behalf and look after them are often clueless and helpless.
I understand that a process for the application and appointment for deputies has been put in place under the existing Act. However, the low level of awareness of the need and the process remains baffling to the main in the street. Usually, it is too late by the time they know about this and the process often takes too long, leaving the family in limbo and distress.
While progress have been made to encourage deputyships for clients in disability organisations – I know such as MINDS for the intellectually disabled – there is still a sizeable population out there who need to know about the matters of deputyship appointments. They ought to urgently start the process of application and appointment, before it is too late.
Hence, I urge the Government to allocate more resources, both financial and for Ministry to allocate more time, to similarly enable a faster, customer-centric and effective process for those who are now without mental capacity.
In summary, Sir, the proposed amendments provide for welcomed changes to an otherwise more cumbersome system.
I have listed four major concerns and provided recommendations for the Ministry’s consideration. Resources will be needed but they will be monies and time well invested. The cost of not investing in this important life planning tool will most certainly be higher later.
Mr Deputy Speaker, Sir, I support the proposed amendments.
Mr Leon Perera.
Mr Speaker, Sir, the Mental Capacity Act (Amendment) Bill makes changes to bring about the digitalisation of LPA filing, changes in the filing of deputyship reports and the modification of the donor protection framework to help curb abuse, among other things. My party Chair Ms Sylvia Lim has spoken in support of the Bill and has posed important clarifying questions and suggestions, as will my Parliamentary colleague Mr Louis Chua. I shall limit my speech to a few technical suggestions for future consideration.
Firstly, Sir, under the Bill, making and submitting an LPA in hard copy may still be permitted but only under exceptional circumstances, such as in the case of physical disabilities or if the Office of the Public Guardian Online (OPGO) website is down, for example.
Some donors may not necessarily have physical disabilities but may be uncomfortable with the prospect of transacting purely online over such an important legal act. This phenomenon may have been elevated by the publicity surrounding Internet frauds and personal data being compromised through various data breaches.
MSF says it will reach out to users in need through the Citizen Connect Centres at community centres and the Integrated Public Service Centre at Tampines Hub. I would like to ask to what extent will the Government preserve this option, going forward, of human staff to support donors at Citizen Connect Centres who wish to register LPAs but who are uncomfortable with submitting the LPA purely online without any interaction with officials at a physical office.
Next, Sir, I would like to suggest that it be made mandatory for donees to notify the Public Guardian of their intention to exercise their authority to make very major decisions on behalf of donors that impact the donor’s living arrangements and have major impact on their finances before doing so, so as to better safeguard persons who lack mental capacity from abuse.
Some jurisdictions require proactive regular reports from donees or guardians, particularly those with financial responsibilities. In Victoria state in Australia, for example, administrators must submit financial statements to the Victorian Civil and Administrative Tribunal on an annual basis and otherwise as directed
The New York Mental Hygiene Law requires guardians to report on their activities. The guardian must file an initial report no later than 90 days after being appointed by the Court. In the initial report, the guardian who has been granted powers with respect to property management must document a complete inventory of properties and financial resources of the "incapable" person. For personal needs, the guardian must provide a plan of care. The guardian must also file an annual report and provide accounting yearly as prescribed by the Court.
Sir, we do not necessarily have to go as far as what is being done in these jurisdictions at this very early stage in the evolution of our LPA landscape, since we also have to avoid imposing overly onerous burdens that may deter persons from becoming donees. However, a basic requirement to notify the OPG when a donee exercises their powers under the Act as regards to major financial and property-related decisions and major living arrangement-related decisions may be worth considering. The definition for what constitutes such major decisions could be clearly spelt out in the legislation or subsidiary legislation.
Such a requirement would provide the OPG with more information on how powers are being exercised under the Act, which would be useful for subsequent policy reviews. Such a requirement may also make the donees take the exercise of their responsibilities a little more seriously when it comes to making very major decisions on behalf of their donors.
I would stress that I am not suggesting that donees be made to file detailed descriptions of every single decision they make on behalf of the donor, or annual reports and so on and so forth, as this is too onerous.
Lastly, Sir, for the longer-term evolution of this body of law and regulation, would the Government consider giving some thought to complementing a substitutive decision-making model for LPAs with a supported decision-making model in the future?
Currently, the Mental Capacity Act or MCA adopts what can be termed a substituted decision-making model, which differs from the supported decision-making model now encouraged by the committee for the Convention on the Rights of Persons with Disabilities or CRPD.
Substituted decision-making enables a proxy to make decisions on behalf of another person who is incapable; therefore, the concerned individual has no right to make a decision for himself or herself unless the substitutive decision-making framework is reversed or mitigated through some form of legal action.
One counter-argument to any move towards a supported decision-making model may be that the substitutive decision-making model may not be as paternalistic as it sounds right now. In the words of Assoc Prof Chin Jing Ji in an article in the journal of the College of Family Physicians, and I quote, “section 6 of the MCA defines best interests to include reasonably ascertainable past and present wishes and feelings, beliefs and values of the person, and other factors of significance. Furthermore, the MCA insists that before an act is done, or a decision is made, due consideration must be made to achieve the intended purpose in a way that is less restrictive on the person’s rights and freedom of action.”
But, Sir, at best, the MCA is ambiguous as to whether it wants primarily to advocate autonomy or beneficence for the person lacking mental capacity. This ambiguity could allow for some interpretation in favour of supported decision-making at the practical level, but may also make decision-making challenging for the donee, potentially leading them to err on the side of caution, meaning to err on the side of paternalism.
It is known within the medical community that the best interests of patients can sometimes come into conflict with substitute decision-making. Clinicians may be left in a difficult position when best interest standards are in conflict with each other. Some argue that the role that the managing physician plays in consensus-building is a potential solution. This problem is further complicated by the presence of paid professionals in the LPA system. Professional donees with little knowledge, no more than the doctor, about the donor’s preferences might be more likely to employ a standardised, paternalistic approach towards decision-making on behalf of the donor.
Sir, the concept of supported decision-making is relatively new and it is predicated on the basic principle that most people are autonomous beings who develop and maintain capacity as they engage in the process of their own decision-making, even if at some levels support is needed.
In the supported decision-making paradigm, the individual receives support from a trusted individual, a network of individuals or entities to make personal, financial and legal decisions that must be followed by a third party such as financial institutions, business, health professionals and service providers. Depending on the needs of the individual with a disability, depending on their particular condition, the supported person will aid the individual to understand the relevant issues and information and make decisions based on her own preferences. If necessary, the person providing support interprets and communicates the individual's preferences and desires to third parties, so that they can be realised.
As described in a paper by researchers Devi, Bickenbach and Stucki, Canada is one of the leading countries in the legal implementation of supported decision-making models, for example, the Vulnerable Persons Living with a Disability Act 1993 from the province of Manitoba. Another example is contained in the province of British Columbia's Representation Agreement Act (RAA), under which an adult can enter into a "representation agreement" with a trusted person or support service who is empowered to either to assist that individual in making and communicating certain decisions with which he or she needs assistance, or to make decisions for him or her. Another example of a supported decision-making model is the Swedish "legal mentor" who acts as the individual's agent, with the individual's consent. Sweden revoked its formal guardianship laws for adults with disabilities in 1989 and replaced it with this supported decision-making model.
Supported decision-making recognises that even people who have difficulty making choices, formulating decisions and communicating their preferences can make positive choices.
The CRPD Committee has repeatedly called for the replacement of substitutive decision-making systems with supported decision-making systems. For example, in its Concluding Observations on Croatia and also General Comment No 1.
I wonder, in conclusion, if the Government would give some thought to developing instruments in the future that would enable us to make supported decision-making a legal option that donors can select alongside the options currently provided for. Moving in this direction may better promote and protect the rights of persons who require support in exercising their legal capacity in line with what they believe to be the mental capacity, the degree of mental capacity that they have.
PAPERCUTS