Guide to Deputyship in Singapore

Deputyship is a Singaporean system in which the Family Courts have the authority to appoint a deputy to act on behalf of a person who lacks mental capacity and cannot make critical decisions independently.

The power to do this comes from the Mental Capacity Act (MCA), which protects vulnerable people who lack mental capacity by appointing a deputy.

The MCA provides reassurance to parents of children with intellectual disabilities. These parents worry about the future of their children, who may become adults by virtue of their age (under the MCA, that’s 21) but struggle with a lack of mental capacity to make critical decisions.

These individuals won’t always have their parents’ support and protection due to increasing age, illness, or infirmity. Parents can apply to the court to appoint a deputy to protect their children in later life.

The Mental Capacity Act also allows parents of young children with intellectual disabilities to appoint a deputy to cover the issue of future care if the parents pass away or lose their mental capacity while the children are still young.

A deputyship is also relevant to older people who can lose mental capacity in their declining years; sometimes, this can be sudden, which means other arrangements have not been put in place.

Applying for a deputyship is particularly important when a person has assets that can be used for their benefit and hasn’t executed a Lasting Power of Attorney.

Who can become a deputy?

A deputy can be a family member, a trusted friend or a professional. Becoming a deputy is a court appointment with specific responsibilities and obligations.

The court will consider the circumstances of the vulnerable person, whether there is likely to be a need for ongoing or future decisions, and whether the appointment is to manage property and finances or health and personal welfare matters.

What can a deputy do?

A deputy can act when that individual cannot make independent decisions. A deputy can make financial decisions and could be granted access by the court to that person’s bank account. A deputy can also make healthcare and welfare decisions.

With the role of deputy come responsibilities and obligations both to the person being supported and to the court. At the heart of being a deputy is the premise that decisions are always made with the vulnerable person’s best interests in mind.

A deputy can only make decisions and take actions within the jurisdiction granted by the court, so this may, for example, just be confined to financial matters; they cannot act in other areas of that person’s life.

The court usually groups decision-making powers into three main areas:

• Financial – this involves all aspects of managing money, including assets and investments
• Personal welfare – all and any aspect of personal well-being
• Healthcare – daily healthcare issues, medical treatments, and medication

Submitting annual reports

A deputy must submit an annual report to the Ministry of Social and Family Development’s Office of Public Guardian detailing the decisions made for the person they are responsible for and how any assets or funds have been used for their welfare.

Deputies have a legal duty to act in the best interests of individuals lacking mental capacity.

What is the Office of Public Guardian?

The Office of Public Guardian (OPG) is part of the Ministry of Social and Family Development. It supports the Public Guardian in its functions under the Mental Capacity Act.

The OPG plays a vital role in ensuring the welfare and protection of individuals who lack mental capacity. In addition to appointing deputies, the Office of Public Guardian offers guidance and support to those caring for people with mental incapacity. It provides information and resources for individuals and their families.

The OPG has the power to investigate complaints or concerns about a particular deputy, their actions and behaviour, and can intervene if necessary.

When is a deputyship important?

A deputyship can be essential to protect the welfare of a vulnerable person and is particularly important where there is no Lasting Power of Attorney (LPA) for a person with mental incapacity.

Making a deputyship application

There are two ways you can apply to become a deputy; one route is described as simplified and the other as standard.

The simplified route is for straightforward cases where a deputy intends to access any sum up to S$60,000 or wants to make decisions on care for that person, or consent to medical treatment.

If all the information is present, simplified applications usually take 4-6 weeks. The application fee is S$40, excluding any costs for producing medical reports. This route is suitable for long-term orders and restricted short-term urgent orders.

The standard deputyship route is for more complicated situations or where there are objections to the appointment. This process takes on average, three to four months for approval, and fees range from S$300 to S$1,000 depending on the number of documents being filed.

If your application contains inconsistencies or someone raises an objection to it, the court may require you to attend a hearing or case conference.

What kind of medical report should accompany a deputyship application?

An application for deputyship must be accompanied by a medical report from a specialist consultant confirming the individual’s mental state and lack of mental capacity; a GP’s report is unacceptable.

The report must contain a doctor’s opinion on the mental capacity of the individual on whose behalf a deputyship is sought specifically in relation to the matters detailed in the deputyship application.

The date of the report can be at any time up to six months before the date of the deputyship application.

What is the definition of mental incapacity?

Mental incapacity is not a temporary loss of cognitive function caused by an accident or a serious illness. Mental incapacity is a consistent inability to make critical decisions and is characterised by specific illnesses and conditions such as certain neurodegenerative diseases and confirmed learning disabilities.

Having said that, the court can make short-term deputyship orders if there is a temporary need for a deputy.

What kind of objections to deputyship can arise?

• The person who will become the subject of a deputyship order can object if they believe they have mental capacity and don’t need a deputy. They will need to make an official request to the court to be included as a party in the case, and they will also require an affidavit accompanied by a medical report which confirms their mental capacity. Legal representation is advisable.
• A relevant person associated with a vulnerable person can contest a deputyship application and request the court to be included as a party in the case. They will require an affidavit describing their interest in the case, and outlining the basis for their objections and must be present at the case hearing. A person objecting to the application is called the defendant.

Are there different types of deputies in Singapore?

There are two types of deputies: property and affairs deputies, who manage finances, assets and property and all the decisions surrounding these for the person lacking mental capacity, and personal welfare deputies, who have input into daily care and any medical treatment.

When the court appoints a deputy, it always prioritises the best interests of the person who will be the subject of the deputyship. The court considers the wishes of the person who lacks mental capacity, the suitability of the applicant, and the type and complexity of the decisions that need to be made.

The court can appoint more than one deputy who can act jointly or separately depending on the matters in question, and the court order will reflect this.

Is a deputyship the same as a Lasting Power of Attorney?

A deputyship can be used when an individual lacks mental capacity and has not made a Lasting Power of Attorney (LPA). An LPA and a deputyship are two different things, but they can be used to achieve the same end: protecting a vulnerable person. The absence of an LPA is often a trigger for applying for a deputyship.

With an LPA, the nominated person acting on behalf of a vulnerable adult is called a donee, not a deputy. A donee has a general power conferred by the LPA to make decisions in the donor’s best interests (the person granting the LPA). Whilst this principle also applies to a deputy, a deputy’s powers are defined by the court order which appoints them.

Since applying for an LPA is inexpensive and straightforward compared to deputyship, it is highly advisable that everyone should apply for an LPA whilst they have their full mental facilities in place. Having an LPA in place would remove the need for a deputyship application needing to be made in the event that someone becomes mentally incapacitated.

Final thoughts on deputyship

A deputyship plugs the gap for vulnerable people where there is no Lasting Power of Attorney and protects children who lack mental capacity if anything happens to their parents.

Even if no apparent family member or friend is available for the role, the court can appoint a professional third party to act. Legal advice and representation are essential for the court process.

Applying for a deputyship can seem daunting. However, an experienced family lawyer will be able to handle all the formalities, collate relevant documents, and effectively state the case for deputyship in court.