Mental Capacity (Amendment) Bill

Mdm 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."

Under the Mental Capacity Act (MCA), a Donor may appoint a Donee through a Lasting Power of Attorney (LPA). If the Donor loses mental capacity, the LPA allows the Donee to decide on the Donor's personal welfare, property and other affairs.

Previously, LPAs were made using hard copy forms. In 2021, the Ministry of Social and Family Development (MSF) amended the MCA to digitalise the LPA process. This provided more convenience and facilitated an uptake in the number of LPAs created. The online LPA system was rolled out on 14 November 2022.

The LPA is a legal document which confers powers enabling a Donee to decide on the Donor's personal welfare, property and other affairs. In most cases, the property, such as a Housing and Development Board (HDB) flat, a private condominium apartment or a landed property, is registered under the Land Titles Act. To transfer ownership of such a property, there is no need for a deed. However, for property not registered under the Land Titles Act, transfer of ownership must be made by way of a deed. Hence, an LPA is executed as a deed, so that irrespective of the type of property, the Donee has the power to make the necessary transactions for the benefit of the Donor.

Prior to the electronic LPAs, the hard copy form contained a statement in the signature box where the Donor physically signs, that the LPA is "signed (or marked) and delivered as a deed by Donor". Section 12A(1)(a) of the MCA is intended to replicate this for electronic LPAs and specifies that the electronic record must clearly state on its face that it is intended to be a deed.

Unfortunately, the electronic LPA, unlike the hard copy form, did not contain this required statement. Two Members of the House have also filed Parliamentary Questions on the matter and I would like to take the opportunity to address them here.

First, we apologise for this omission and for any inconvenience this may have caused. Since 5 January this year, the electronic LPA has been revised to include this statement.

Next, let me touch on the implications of the omission. For the approximately 87,000 electronic LPAs made between 14 November 2022 and 4 January 2024, there is some uncertainty as to whether the LPAs were validly made.

Hard copy LPAs, on the other hand, were not affected by this omission. Till date, MSF is not aware of any actual harm suffered by Donees or Donors. Many of the Donors that made the LPAs continue to have mental capacity, and so, there is no need yet for the Donees to act on their behalf. It is possible that some Donees have begun to exercise the powers in some of the affected electronic LPAs, but we are not aware of any challenge to the exercise of those powers by third parties. This Bill will remove any future potential complications.

Lastly, on the process by which the electronic LPA form was approved for deployment, MSF had an internal proofreading and vetting process. The forms were prepared by the staff of the Office of the Public Guardian and was vetted by the Public Guardian, as well as by a separate Legal Unit. Unfortunately, no system of process checks can be 100% accurate, as this case shows. In fact, the electronic LPA forms go through various parties, including certificate issuers who are people familiar with the hard copy forms, such as lawyers or doctors. Despite this, it took nearly a year before a member of the public noticed the difference and wrote in to enquire.

Let me now turn to the Mental Capacity (Amendment) Bill proper. Our key consideration was to ensure certainty of the validity of the LPAs which the Donors had made, so that the Donors would not have to take steps to re-make their LPAs.

The Bill provides for the retroactive validation of the affected LPAs by introducing a new section 12B in the MCA.

Specifically, subsections (1) and (2) provide that an LPA made between 14 November 2022 and 4 January 2024, both dates inclusive, using the online LPA system, is not invalid as a deed and not invalidly created by reason only that it was not made in compliance with section 12A(1)(a). Our intent is to validate all affected electronic LPAs, provided they comply with all other legal requirements for the making of an LPA. Subsection (3) additionally provides that no legal proceedings may be instituted on or after 6 March 2024 over the validity of these LPAs by reason of the instruments, or forms, used in the making of the LPA not being in accordance with section 12A(1)(a).

With this amendment, the uncertainty over the validity of all affected electronic LPAs will be removed. Again, we apologise for the omission and assure affected Donors that they do not need to re-make their LPAs. With that, Mdm Deputy Speaker, I beg to move.

Question proposed.

Mr Don Wee.

Mdm Deputy Speaker, I declare my interest as a pro bono deputy with the Office of the Public Guardian (OPG).

I support this amendment Bill, which is necessary to retroactively validate the electronic LPAs certified from 14 November 2022 to 4 January 2024. I was concerned to learn about the omission of the sentence in the LPA expressly stating that it is intended to be a deed. I would like to ask the Ministry to explain in greater detail, what exactly is the significance of an LPA being classified as a deed and why this distinction is important under the Mental Capacity Act?

Secondly, the process of retroactive validation is through the inclusion of the new section 12B. All affected LPA documents will be validated when this section passes into law and comes into force. With this change, affected Donors do not need to remake their LPAs and they would not need to take any action. Mdm Deputy Speaker, in Mandarin.

(In Mandarin): [Please refer to Vernacular Speech.] May I seek clarification regarding the treatment of the electronic LPAs during interim period before the Bill becomes law? How are affected parties be protected and whether there have been any cases of disgruntled family members of affected donors contesting the validity of the LPAs and requesting new donees to be appointed?

Considering that 87,000 electronic LPAs are affected, will the affected individuals be notified and updated on this retroactive validation?

(In English): It was reported in the press that the Ministry had received feedback on the omitted sentence from a member of the public in October 2023. What measures are being taken to ensure that such omissions do not occur in the future, both in terms of electronic LPAs and other related documents?

I would like to take this opportunity to ask the Ministry if the take-up rate for LPAs is on target? In addition, as I had shared in the House before, would the Ministry consider reviewing and enhancing the safeguards for Donors to prevent potential financial exploitation? If Donees siphon away or spend the Donors' monies carelessly, other family members or our national coffers will have to pay for the care of the Donors. Presently, these cases of opportunistic Donees are very few, but their numbers are likely to increase as our population ages.

Finally, I would like to ask for an update on measures to simplify and expedite the process for deputyship, with reference to my own experience as a pro bono deputy with the OPG.

For clients who have lost their mental capacity, medical diagnoses need to be submitted when applying for a Court order to appoint a pro bono Donee. What is the average duration required to retrieve such medical records? What is the role of the National Electronic Health Record (NEHR) system in assisting the affected parties with retrieving and sharing the necessary information in a timely manner?

Ms Hany Soh.

Mdm Deputy Speaker, I declare that I am a practising lawyer. I rise in support of this Bill.

This Bill purports to remediate the omission in the electronic LPA documents, due to which approximately 87,000 LPA documents are exposed to potential legal challenge. These 87,000 LPAs were certified between 14 November 2022 and 4 January 2024. The omission is in respect of the statutory requirement pursuant to section 12A(1)(a) of the Mental Capacity Act 2008, for an LPA to state expressly that it is intended to be a deed by the Donor.

Madam, inadvertent mistakes do occur despite best efforts and stringent safeguards against the same. The primary lesson in every such episode, is how we all can be better and actually take all the steps to be better. I appreciate that the OPG that they have been transparent in accounting for its mistake and swift in remedying the potential consequences. The electronic LPA was a laudable initiative and which has benefited numerous Singaporeans.

In our mission to be and do better, I seek several clarifications over the issue.

Firstly, has the OPG ascertained whether any of the 87,000 LPA Donors have since become mentally incapacitated? While this Bill negates the need for any remedial actions on the Donors' part, Donees could understandably be anxious and uncertain about the ramifications stemming from the error, coupled with the fact that the LPA Donor is no longer able to amend his or her LPA.

Next, has the OPG directly notified all affected parties? This would include but not necessarily be limited to the Donors and Donees but, perhaps, also the lawyers who may have assisted in the Donor's e-submissions of the affected LPAs. Additionally, how has the OPG, at the organisational level; as well as MSF, at the Ministry level, been assisting and supporting those affected?

As part of its rectification efforts and aside from this Bill, has or will the OPG and MSF consider enlisting the assistance of the members of the legal profession and other appropriate personnel? Our community is our greatest and most valuable resource and we have many who stand ready to volunteer their assistance.

It would also be understandable for the affected Donors and/or Donees to want to relook at the affected LPAs. In this regard, will the OPG consider permitting them to do so and if they choose to do so, also allow for them to make amendments at no charge?

Lastly, LPA Donors and Donees have been able to apply for a hard copy and certified true copy of the LPA through the OPG's portal. To assure those affected beyond a shadow of a doubt, would the Minister please confirm that the copies of the LPA ,which have been issued by the OPG, remain valid following the passage of this Bill and that there will be no need for any re-application or re-issuance?

I thank the Minister in advance for his response to my clarifications. I would like to also take this opportunity to encourage the officers at the OPG and MSF to take this lesson in their stride and continue the good work they have been doing for all Singaporeans.

Mr Yip Hon Weng.

Mdm Deputy Speaker, in the event we lose mental capacity, an LPA allows us to appoint a trusted individual, called a Donee, to make decisions on our behalf regarding our finances, property and healthcare. This is an invaluable tool. It ensures that our wishes are respected, even if we can no longer express them ourselves.

The move towards digital LPAs is a welcomed step towards greater efficiency and accessibility. However, the recent discovery concerning the omission of a statement in electronic LPAs raises grave concerns. While I understand that retrospective action has been taken, I seek some clarifications.

First, what would have been the legal implications for holders of LPA documents missing the required sentence? Second, why was this oversight not identified earlier? What drafting and vetting processes failed in transporting the physical LPA to the online version? Third, have there been any Court cases challenging the validity of e-LPAs, due to this missing clause? How will this be resolved? If there is any legal cost involved resultantly, which party will bear the costs?

Moving forward, how does the Ministry plan to inform LPA Donors about the corrective changes made? Will they receive a hard copy letter outlining the necessary information? More importantly, what measures will be put in place to prevent similar situations from happening in the future? Will there be a system in place to check and ensure all essential clauses are included in future e-documents prepared by the Government?

In conclusion, Mdm Deputy Speaker, the Government must address these concerns promptly and effectively. The Government should not allow such concerns to cast a shadow of doubt over the overall benefits of adopting a digital system for Government services. Ensuring public trust and confidence in these systems require transparency and proactive measures to prevent future issues.

Let us continue to embrace technological advancements while safeguarding the legal validity and effectiveness of the use of electronic documents in Singapore. This is vitally important as we continue to encourage Singaporeans to plan for end-of-life issues early. I support the Bill.

Senior Parliamentary Secretary Eric Chua.

Mdm Deputy Speaker, I thank Members for the thoughtful questions raised and for their support for the Mental Capacity (Amendment) Bill.

With this amendment to the Mental Capacity Act, the affected electronic LPAs, made between 14 November 2022 and 4 January 2024, will be retroactively validated. Affected Donors do not need to re-make their LPAs and no action is required on their part. To date, MSF has not received any requests for electronic LPAs to be re-made.

Several questions have been raised by Members on the impact to those affected, as well as the support provided. Let me address these questions in turn.

Ms Hany Soh asked about how many of the 87,000 affected LPA Donors have since become mentally incapacitated and if Certified True Copies of electronic LPAs that have been issued would have to be re-issued.

Currently, there is no requirement for the Donee to inform the OPG when the Donor loses mental capacity or when an LPA is used. Nonetheless, according to our records, the vast majority of the affected LPAs have not yet been shared with third parties.

The Bill, once it comes into effect, will remove any uncertainty over the validity of these LPAs on the basis of the omitted statement. In addition, third parties who have transacted with Donees based on a Certified True Copy of the electronic LPA may continue to rely on these documents for the transaction. However, we recommend that third parties request for the online registered LPA rather than a Certified True Copy, to ensure that they obtain the most updated version.

Ms Hany Soh and Mr Don Wee also asked how affected parties will be supported and protected in the interim and if there have been challenges made against the affected LPAs. Since the issue was made public, MSF has not been made aware of any such challenges being brought against the affected electronic LPAs. Subsection (3) of the Bill provides that no legal proceedings may be instituted on or after 6 March 2024 over the validity of these LPAs by reason of the instruments or forms, used in the making of the LPA not being in accordance with section 12A(1)(a).

Ms Hany Soh, Mr Don Wee and Mr Yip Hon Weng asked if there will be notice given to affected Donors, to inform them that their LPAs will now be recognised as valid. As no action is required by these Donors, we will not send individual notices. Instead, a note will be affixed to the registration page of affected electronic LPAs to point to the retroactive validating provision, when the Bill comes into effect.

Queries were also raised by Members on measures to strengthen our processes, and on enhancing the LPA and deputyship regimes.

Ms Hany Soh, Mr Don Wee and Mr Yip Hon Weng asked about possible measures that can be taken to ensure such an incident does not happen again, including enlisting the assistance of the legal profession. While no system of checks can be a 100% foolproof, MSF will continue to proof-read and vet all documents as thoroughly and as meticulously as possible. We will perform a final vetting of all documents prior to a system launch, to ensure compliance with operational as well as legal requirements.

Mr Don Wee has also raised several other queries relating to the LPA and deputyship regime.

On the safeguards to prevent the financial exploitation of Donors, the Mental Capacity Act contains several provisions to address potential cases of financial exploitation. For instance, if the court is satisfied that fraud or undue pressure was used to induce a Donor to execute an LPA, the court may direct that the LPA be not registered or revoked, amongst other things. The Public Guardian may also investigate any alleged contravention of the Act and may interview a Donor to ascertain whether he or she had executed an LPA under fraud or undue pressure.

In addition, financial exploitation of Donors may also amount to criminal offences, such as under the Penal Code. If any person suspects or believes that a person who lacks mental capacity is being financially exploited, they may report this to the Public Guardian and the Police. The Office of the Public Guardian promptly looks into such reports and works closely with the relevant agencies such as banks to take swift action and minimise harm done to the person who lacks mental capacity. In addition, the Public Guardian may also apply to the court to suspend or revoke the LPA or place the Donee or Deputy under closer supervision.

Today, before an application for deputyship can be made, the individual intending to apply for deputyship will have to obtain a medical report from a doctor certifying the individual’s lack of mental capacity. This medical report has to be dated no earlier than six months before the deputyship application, which ensures that the information provided is current. An assessment of mental capacity assesses an individual’s ability to take in information presented and demonstrate sufficient reasoning in order to make informed decisions. As mental capacity may fluctuate over time, a proper assessment of the current mental capacity of an individual cannot rely on historical health information in medical records such as the National Electronic Health Record (NEHR).

A deputyship application may also be filed on the simplified process if all relevant persons to the individual who lacks mental capacity consent to the application and where the deputyship application is for specific orders under the Mental Capacity Act, such as to withdraw up to $80,000 of P’s monies, where P refers to the person who lacks mental capacity or other common orders such as to consent to medical treatment. The simplified deputyship application typically takes four to six weeks, which is faster than the standard deputyship applications. We will continue to review how we can improve the process while ensuring sufficient safeguards against potential fraud or undue pressure.

Mr Don Wee has also asked about the LPA take-up rates. Indeed, making an LPA is an important step in planning ahead for ourselves and our loved ones. With an LPA in place, we can be better assured that our loved ones are empowered to support us and manage our affairs, should we lose our mental capacity. To date, close to 210,000 Singaporeans who are aged 50 and above, have made an LPA. The LPA Form 1 application fee is currently waived for Singapore citizens till 31 March 2026. Let me take this opportunity to also reiterate MSF’s commitment to supporting Singaporeans in their pre-planning efforts, and urge those who have yet to do so to make an LPA as soon as possible. Mdm Deputy Speaker, I beg to move.

Any clarifications?

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [Mr Eric Chua].

Bill considered in Committee; reported without amendment; read a Third time and passed.