Speech on Amendments to Mental Capacity Act
Things get tough when we lose the ability to make decisions for ourselves whilst still alive.
Hence, the great push by the Government for each of us to make a Lasting Power of Attorney (LPA) - to appoint someone we trust to decide on our personal welfare and financial matters when we lose mental capacity. Kind of like a Will, but when we are still alive.
At this week’s Parliament sitting, a Bill was passed to make it even easier to make an LPA.
People who can self-help will soon be able to do it online.
I rose to support the Bill.
I also raised 4 Concerns to hopefully improve things further along:
better Comms and outreach so more of us will do it ;
support for the vulnerable like our less tech-savvy or persons with disabilities ;
increase the pool of professionals to go beyond lawyers and doctors; and
to help those who have already lost mental capacity and LPA is no longer an option.
Have you made your LPA?
Here’s my full speech :
SPEECH ON AMENDMENTS TO MENTAL CAPACITY ACT. BY DENISE PHUA. 4 July 2021
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 on line through the formation of an Office of the Public GuardiAN Online electronic system (OPGO).
There are good reasons for this change.
One, to cope with the rising LPA volume which has increased from from 2,681 in year 2014 to 24,488 in 2019.
Two, to enable a faster and more convenient process. The change remove the need to physically print and submit hardcopies, or affix wet-ink seals and signatures – currently need for LPA deeds.
Three, the proposed amendments provide for new features to better store, search and retrieve electronic LPAs versus hardcopy 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 the IT-savvy who can self-help.
However, I would like to highlight 4 concerns which I hope the Ministry can address.
Concern One: 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 nos of LPAs registered (more than 20,000 annually in recent years), the total number remains relatively low, compared to the population who are eligible.
The data bears testimony and support this concern.
More than 1 million Singaporeans are above the age of 55.
More Singaporeans are expected to be hit by dementia.
In a 2015 study conducted by the Well Being of the Singapore Elderly (WiSE) led by the Institute of Mental Health, one in 10 people aged 60 and above may have dementia.
In 2018, Channel News Asia (“CNA”) ran an article featuring more Singaporeans being diagnosed with dementia at an even younger age.
There is clearly an increasing number of Singaporeans at risk of losing their mental capacity.
There is also inertia to take the initiative by many to apply for an LPA.
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 Plan is in need.
I strongly advise the development and implementation of a comprehensive Communications and OutReach Plan covering:
(a) Different Target Audiences ; (b) Analyses of their communications style, language, channels; and
(c) Ways by which they can be reached through an effective mix of TV, radio, print, grassroots workshops and incentive programmes.
Concern Two: THE VULNERABLE AND THE NEED TO INCLUDE AND PROTECT THEIR INTERESTS
Sir, some members of society who most need an LPA are 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 or electronic signatures.
In an IMDA survey of 2019 revealed that 58% of residents above age 60 are internet users compared to 89% for all residents – a percentage point difference of 31%.
Then there are persons with disabilities who are differently-abled. 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 Section 5 of the Act ie, understand, retain, weigh and 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:
(a) Set up specific LPA CLINICS at the major Community Centres staffed by trained professionals with technical knowledge and/or language fluency. Much like the Vaccination Centres albeit at a smaller scale. These can be permanent for bigger towns or they can be mobile LPA to serve smaller precincts;
(b) Adopt a PARALLEL RUN allowing for a co-existing physical and online system until the nation is more ready to go fully online.
Concern Three : LIMITING CERTIFICATE ISSUERS TO ONLY MEDICAL PRACTITIONERS, LAWYERS AND PSYCHIATRISTS
One important party to the process of LPA application is the Certificate Issuer (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 MCA states that the LPA CI must be either (a) a medical practitioner accredited by the Public Guardian; (b) a practicing lawyer; or (c) a registered psychiatrist.
Findings eg in Hong Kong have shown that many do not approach these professionals for various reasons – cost or the perception thereof; 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 or a professional person such as one of the following: (a) a registered healthcare professional ; (b) a solicitor, barrister or advocate ; (c) a registered social worker; or (d) an independent mental capacity advocate.
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 interested in detecting the donors who are vulnerable, unduly pressured or influenced into giving power to certain donees.
Why, for example, can’t senior social workers or psychologists be accredited by the Public Guardian 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: FAMILIES OF PERSONS WHO LACK OR LOST MENTAL CAPACITY AND ARE WITHOUT AN LPA
Sir, as an MP, I am deeply concerned for adult residents who are incapacitated (due to old age, by birth, accident etc) or become incapacitated, 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 of deputies has been put in place under the existing MCA.
However, the low level of awareness of the need and process remains baffling to the main in the street. Usually, it is too late by the time they know and the process often takes so long, leaving the family in limbo and distress.
While progress has been made to encourage deputyships for clients in disability organisations such as MINDS, 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 before it is too late.
I urge the Government to allocate more resources, both financial and time, to similarly enable a faster, customer-centric and effective process for those who are now without mental capacity.
CONCLUSION
In summary, Speaker Sir, the OPGO provides for welcomed changes to an otherwise more cumbersome system.
I have listed 4 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.
Speaker Sir, I support the proposed Amendments.
Denise Phua
5 July 2021