WILLS & ESTATES
Deputy Applications and Disputes under the Mental Capacity Act
When a loved one can no longer make important decisions independently, families may agree that help is needed but disagree about who should provide it.
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When a loved one can no longer make important decisions independently, families may agree that help is needed but disagree about who should provide it. One relative may want to manage the bank accounts, another may be concerned about care, and others may question whether property should be sold. These disagreements can lead to a deputyship application under Singapore's Mental Capacity Act 2008.
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The court may appoint a deputy to make specified decisions for a person who lacks capacity, commonly referred to as "P". The court's focus is not family rank or convenience. It is whether the proposed arrangement is necessary, workable and in P's best interests.
Capacity is decision-specific
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A diagnosis of dementia, stroke or another condition does not automatically mean that a person lacks capacity for every purpose. The Act starts from the presumption that a person has capacity. All practicable steps should be taken to support P in making the decision, and an unwise decision does not by itself prove incapacity.
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The test for incapacity under section 4 of the Act has two components, as explained by the Court of Appeal in Re BKR [2015] SGCA 26; [2015] 4 SLR 81 — the leading Court of Appeal authority on the Mental Capacity Act. The test is: (i) a functional component — whether P is unable to make the particular decision at the relevant time; and (ii) a clinical component — whether that inability is caused by an impairment or disturbance in the functioning of the mind or brain. Re BKR also held that the court must have regard to P's actual circumstances (including any undue influence P may be subject to) rather than assessing capacity in the abstract, and it endorsed a more inquisitorial, less adversarial approach to MCA proceedings, favouring independent expert assessment over dueling party experts.
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LPA or deputyship?
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A Lasting Power of Attorney (LPA) is made while a person still has capacity. It allows chosen donees to act if capacity is later lost, within the authority granted. Deputyship is generally required where no valid LPA covers the decision, or where the court's intervention is otherwise necessary.
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Being a spouse, child or sibling does not automatically authorise someone to operate P's accounts, sell P's property or instruct lawyers on P's behalf. Authority must come from a valid LPA, a court order or another recognised legal basis.
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What powers may a deputy receive?
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Deputyship orders are tailored to P's actual needs. Powers may concern personal welfare, property and affairs, or both. They may include dealing with bank accounts, insurance and expenses, managing or selling property, signing documents and making specified care or treatment decisions.
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Under section 20(4)(b), as applied in Re BKR, the court must have regard to the principle that a deputy's powers should be as limited in scope and duration as is reasonably practicable. A deputy is not given a free hand over every part of P's life merely because some assistance is needed.
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What do families usually dispute?
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Common disputes concern who should be appointed, whether there should be one deputy or several, how deputies should act, past spending from P's funds, whether P's home should be kept or sold, where P should live, and whether a proposed deputy has a conflict of interest. Contested cases often become credibility disputes, with the court examining each person's conduct, involvement in P's care, financial judgment and willingness to account — and, as Re BKR illustrates, the possibility of undue influence over P by a caregiver can itself become the central issue.
How does the court decide?
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The court applies the statutory best-interests principles under section 6 of the Act. It may consider P's past and present wishes and feelings, beliefs and values, and the views of appropriate family members and carers. It should also consider whether the decision can be delayed until P may regain capacity, and whether a less restrictive option is available.
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The court may make a specific decision itself rather than appointing a deputy with broad continuing powers. Family status is relevant, but it does not displace evidence about suitability or practical arrangements.
Which process applies?
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A simplified process is available for certain common orders where the application falls within prescribed limits and the relevant persons consent. The standard process is used where broader powers are sought, objections are expected, or the circumstances are more complex. Medical evidence of P's capacity is required in either process.
Frequently asked questions
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A deputy is appointed by the court to make decisions for someone who lacks mental capacity, for example about money, property or care. It is usually needed when the person did not make a Lasting Power of Attorney while they still had capacity.
Typically a family member or close friend can apply to the Family Justice Courts. The court appoints someone suitable, and the deputy must act in the person's best interests and follow the court's directions.
The court decides based on what is in the best interests of the person who lacks capacity, not which relative prefers to take charge. Disputes can often be narrowed through mediation, but where they cannot, legal advice is important.
Disclaimer: These articles are intended to provide general information only and do not constitute legal advice. Each article is prepared based on the law and information available as at its date of publication. While care is taken to ensure that the contents are accurate and informative, the law is subject to change, and subsequent legislative, regulatory or judicial developments may affect the interpretation or application of the matters discussed. These articles should not be used or relied upon as a substitute for professional legal consultation, and legal advice should be sought in relation to any specific legal matter.
A deputy remains accountable
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A deputy must act within the order and in P's best interests. Property-and-affairs deputies must keep records of decisions and transactions and comply with reporting requirements to the Office of the Public Guardian (OPGO). The court may vary or revoke the appointment if duties are not performed properly.
What should a family do early?
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Identify the precise decisions that need to be made, obtain the medical evidence, prepare a realistic care and financial plan, list P's assets and expenses, and record any known wishes. Where objections are likely, early advice can help keep the application focused on P rather than wider family grievances.