Debated in Parliament on 7 Oct 2014.
Ms Sylvia Lim asked the Minister for Social and Family Development what safeguards are in place to ensure that persons who execute Lasting Powers of Attorney (LPAs) under the Mental Capacity Act act independently.
Madam, the Lasting Power of Attorney, or LPA for short, is a legal instrument that allows individuals, called donors, to appoint other persons, called donees, to make decisions for them, should they lose their mental capacity in future. Let me provide a bit of context. Before the Mental Capacity Act was in force, there was no pre-planning instrument available. Families of those without mental capacity had no choice but to go through the Court process in order to make decisions to transact on their behalf. Such court applications can be onerous and costly.
In contrast to the previous regime, the mental capacity legislation of today is one that is facilitative and underpins the roles and responsibilities of donors and donees.
There are a few layers of safeguards in this entire process. Let me start, first, and that is education. It is important that Singaporeans understand the intent and the spirit of the LPA. As such, the most fundamental safeguard would be education on the LPA and the Act, for the donees and the donors to understand their roles, responsibilities and rights. To this end, the Office of the Public Guardian (OPG) has conducted more than 600 talks on the subject and we will continue to spread the message. MSF will continue to educate Singaporeans and other stakeholders so that there is greater familiarity with the LPA framework, especially with regard to the rights, roles and responsibilities of the donors, donees and other parties concerned.
Second, making an LPA is a very personal decision. Donors should consider who they wish to appoint as their donees carefully. The person should be someone whom the donor trusts and who knows the donor's interests, preferences and beliefs.
After obtaining agreement of their donees for the appointment, the donor is required to see a certificate issuer as an independent check. The role of the certificate issuer is to certify that the donor understands the purpose of the LPA and is not under undue pressure.
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Three categories of persons can be certificate issuers – practising lawyers, psychiatrists and medical practitioners accredited by the Public Guardian. All three parties – the donor, donee and certificate issuer – are to also have read and understood the prescribed information on the LPA form.
Next, the LPA needs to be registered to take legal effect. When an application is submitted to the Office of Public Guardian, various checks are done to ensure compliance to the requirements. These include accuracy checks on the information in the form such as ensuring that if two donees are appointed, it is specified in the form whether they are to act jointly or jointly and severally; and that the signatures of the donor in different parts of the form are consistent.
The Act further provides safeguards to ensure that the best interests of the individual are protected if he or she loses mental capacity. Should a donee not act in the best interests of the donor, the legislation provides for whistle-blowing so that the Public Guardian can investigate and take up an application to court to remove the donee.
Everyone has a role to play and a responsibility to uphold within the LPA framework – the donor in his choice of donee; the certificate issuer in ascertaining the donor's understanding; the donee in acting in the best interest of the donor; and the OPG in its registry and investigative functions. We need the collective cooperation of everyone involved in order to fully realise the intent and potential of the legislation.
Ms Sylvia Lim.
Thank you, Madam. I have five supplementary questions for the Minister. The first is that I understand that prior to this year, actually our procedure for registering the LPA had an additional step and that was: the person making the LPA would be asked if there were other persons whom he or she wished to notify about the making of the LPA. This requirement was removed in 2014. So, I would like to ask the Minister why that was the case.
Second, does the Minister not agree that this requirement is actually a good safeguard to ensure that other people, besides the attorney or the proposed attorney, are aware of the LPA being made? And would the Ministry look at bringing back this requirement as a better safeguard for the independence of the making of the LPA?
The third point is about the certificate issuers mentioned by the Minister earlier. Under our current procedure, as he mentioned, there are three groups of people who are professionals who can issue the certificate. You could be a General Practitioner accredited to the Office of
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Public Guardian; you could be a psychiatrist; you could be a lawyer with a practising certificate. My concern is that the LPA actually, in our current format, is a standard form and I have gone through one of these myself as an issuer and it does not really take that much time for the issuer to go through the form with the person making the LPA. It is a question of ticking boxes, filling up blanks and professionals can make mistakes in such circumstances in judgement as well.
So, I would like to ask whether the Government would consider an additional check for the certificate issuers when they are certifying the LPA. For example, in Scotland, I understand that even as a professional, the professional will have to indicate whether they are forming an opinion of the donor's independence based on personal knowledge of the donor from the past or by consulting another person who can confirm that the person making the LPA is actually acting according to his or her own wishes.
The fourth supplementary question is this question of vulnerable groups. I think the Government would agree that there would be certain vulnerable groups, especially lonely elderly people, who may be subject to undue influences in issuing the LPA. I think there are studies, including studies, such as the 2011 MetLife Study on Elder Financial Abuse —
Ms Lim, would you please summarise your supplementary questions?
Yes, the last two, Madam. These studies which showed that vulnerable lonely elderly people are particularly susceptible to being pressured to deal with their assets in a way that could amount to scams. So, I wonder whether the Government is concerned about this potential abuse in the LPA system and whether there are additional safeguards that are needed for such vulnerable groups.
Last of all, the Minister did mention that the Public Guardian itself has a role to play as a safeguard. I would like to ask whether the OPG currently acts based just on complaints or does it, of its own volition, investigate suspicious cases?
Mdm Speaker, let me provide a bit of context to all of Ms Lim's questions. As I have spoken at the beginning, we have two sets of things now. In the past, we only had one and, that is, if someone loses his mental capacity, he goes to Court or the relative goes to Court and try and get a deputyship to act. That is always onerous and sometimes costly. I personally have cases that come to me at my Meet-the-People Sessions (MPS), where the relatives of the family could not act in a timely fashion because they did not have LPA and there were no rights for the family members or the relatives to act in a timely manner, like even renting out a property to collect rent in order to pay for the nursing home charges. With that, we have come to the LPA, which is a facilitative arrangement to
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help family members avoid all these legal complications so that they can quickly act in the best interest of the person who has lost his mental capacity.
So, for the first question, it is always important to remember this at the back of our mind, because I can always understand and appreciate that when something happens, there is always a desire for us to add more new rules to it. But in adding the rules, we have to find a balance between facilitating the majority of the cases and having a framework that can handle the exceptional cases. And I will explain why our current framework allows the majority of the cases to be handled easily and facilitates decision-making and, at the same time, allows us to catch some of these exceptional cases.
Ms Lim's first question is why did we remove that additional step. The thing was removed with the feedback from the few thousand cases that we had handled in the past and they said that actually, they could still inform their family members if they wished to do so. I must say here, at this point in time, that not everyone wants to inform certain family members of their decision and that is the dilemma. We leave it to the best judgement of the individuals to inform the persons that they want to inform. The current arrangement allows them to do that. If anyone has any special arrangements beyond Form 1, they can put into Form 2 the additional instructions given to the OPG. So, it is still allowed. But I must say that we must not make the assumption that we know who the person, the donor, should inform because the donor has his or her own considerations as to whom he or she may wish or not wish to inform.
Question two is already answered: should we bring back the safeguard? Actually, the safeguard is in place. Form 1 today caters to the bulk of the people. More than 90% of the people will be able to use Form 1 and it will fulfil most of their needs. For the minority of cases who want to have an additional layer of safeguard, that can be specified in Form 2. So, that allows people to do what they wish to do.
Third question: what about the certificate issuer? Whether we have one certificate issuer consulting with another certificate issuer, what has not changed is that I expect the certificate issuer to do his or her job professionally. They are psychiatrists; they are practising lawyers and they are doctors who are accredited with the Public Guardian. So, I have always been very careful ever since I was young. When something has gone wrong, I would ask, "Is the person not doing his job and therefore should I punish the person? Or is the system not working?" If the person is not doing the job and we add additional layers to make sure that the person does his job, I think we should be very careful. Does that encourage the person to do his job better? When many people are responsible for something, it usually means nobody is responsible for anything. So, I would rather have a system where I assign very clear responsibility – if you collect the professional fees, you are expected to do a good job to certify whether the person is acting independently and has the best capacity of mind. I can
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appreciate that sometimes a second pair of eyes does help. But we must always be careful not to overly burden the system so that you generate a dissipation of the responsibility and, in the end, no one is fully responsible. And this is the reason why there is a difference between the administrative fee that was waived by MSF – $50 previously – versus the professional fees that are being charged by the certificate issuer, which is not waived.
On the fourth question, should we take more care when it comes to vulnerable groups, especially the lonely? Yes, definitely. There will be a growing population of older people in Singapore in time to come and we can expect that many of these vulnerable lonely elderly will require more help. I have, in this year's Committee of Supply debates, announced that we are looking at strengthening some of the rules and regulations on how we can better safeguard the interests of our vulnerable lonely elderly. Maybe we do not need it now, but we will certainly need it in time to come.
The last supplementary question that Ms Lim asked was what the Public Guardian's role was. The Public Guardian can act either on whistle-bowling when someone makes a complaint or if the Public Guardian has reasonable grounds to suspect that a donee is not acting in the best interest of the donor.
In a recent case that has caught the attention of many Singaporeans, the Public Guardian has done three things on its own. One, it has come to his attention that the donee may not have acted in the best interest of the donor. It triggered off an investigation with the Commercial Affairs Department. Two, the Public Guardian has asked for a board of visitors to visit the person concerned to ensure that the well-being of the person is kept. Finally, in a dispute like this, the Public Guardian has, last week, put before the Court two requests: one, to set aside the rights of the donee to act on behalf of the donor in that particular case to safeguard her interests; two, to make an independent assessment whether the donor has the capability and the mental capacity to act in her own interest as of now.
Ms Sylvia Lim.
Thank you, Madam. Three supplementary questions arising from the Minister's answer. I agree with the Minister that there are two forms currently under the system. But it seems from my observation that Form 1 has become the default form. In fact, I think at the grassroots level, there has been a big concerted effort to get people to issue LPAs – that is the cheaper version, anyway.
My question is this: I do not think it detracts from what the Minister said about giving options and so on. Earlier on, the procedure before this year was that the donor was asked whether you want to notify someone. It is not that you have to, but you are asked "Is there
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someone you would like to notify of the making of a LPA". It was always an option given to the maker, but the point is that it was the duty on the part of the person issuing the certificate to make sure that the maker of the LPA addressed this question and addressed his or her mind to the question of whether he or she wanted to notify someone. It still remains an option. I am not really convinced by the Minister's answer that it is cumbersome, because it is just an additional question that you would like the maker to address his or her mind to and at the point of giving the LPA, even if it is in the default Form 1.
The second question is concerning the certificate issuer. The Minister said that by putting too many people into the process will somehow make it such that people are not responsible. I do not really agree with him on that either. In the case I mentioned, which is the Scottish case, what they require is, for example, as a lawyer, if I am making an LPA for my client, I know that client personally, then I can vouch for that client and that this is what that client wants. But if I am meeting a person for the first time, I may not know this person and the LPA process does not take too long. What is so difficult about requiring a check with someone who knows the donor – not a certificate issuer but someone who knows the donor – to confirm that this LPA would be in keeping with what the donor wishes to do?
The third question is about the role of the Public Guardian. The Minister spoke about this current case where the OPG has taken a number of applications. I am not just referring to that but in general, besides this one, has the OPG ever looked into any other case on its own accord?
Madam, on the Member's three supplementary questions, the option is still there and I do not think it is cumbersome if a person requests for someone to be informed. It can just be written down and the donor, understanding his or her own rights, responsibilities and roles, can actually request for that. I do not think that it has been removed. But I must also remind Ms Lim that prior to this, if we just trace back the last one year, we have had nine letters at least to the Forum Page, and many others, asking us to simplify the process because the bulk of the Singaporeans – the vast majority of the Singaporeans – will be able to do with Form 1. For the minority that requires additional instructions, Form 2 is always available. That is how we have designed the system to allow a simple form to cater to the vast majority that do not have complex arrangements. For people who require additional arrangements, there is always Form 2 available. As Ms Lim has said, it is not very cumbersome to do Form 2, if they have additional requirements.
On the second issue about the comparison with other countries, when we designed the whole process, actually, the Singapore's system of LPA is by far much more onerous than that of other countries. In some other countries, including the examples that Ms Lim has mentioned, I am not so sure that everybody abides by the same. We have examples whereby there are countries which would just ask somebody who may not even be a professional to
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certify that. We are personally not satisfied with that, which is why we have controlled the number of people who can be certificate issuers to make sure that only professionals who understand the law are able to make that assessment. The Member is right – it is not onerous to do that. But if your certificate issuer is at any time uncomfortable to make that assessment, the certificate issuer has the right and the responsibility to step back from that, rather than to just certify it blindly. I do not think most of the certificate issuers or all of the certificate issuers just do it as if they do not bother with the procedures. I trust that the certificate issuers, being professionals in their own right, must do their duties professionally.
On the last question about the OPG, the OPG will investigate and trigger actions as and when we require, because we will monitor the cases that are put before us and also those that have registered with us.
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