Assessing Mental Capacity for Lasting Power of Attorney and Wills
SOONER RATHER THAN LATER
As everyone knows, Singapore is facing a silver tsunami. By 2030, one in four Singaporeans will be aged 65 years and above, compared with around one in eight today. As we get older, our mental capacity may worsen and the lack of mental or testamentary capacity can be fatal to documents that are signed by the elderly causing them to be considered unenforceable and void.
With many of my clients having parents who are already in the 70 to 80 age bandwidth, many of them have been asking me about obtaining a Lasting Power of Attorney (LPA) or a will for themselves and their loved ones/parents. With the concern that unforeseen circumstances such as dementia or illness may arise, these two written instruments can be an important part of safeguarding assets and financial interests and generally putting one’s mind at ease.
However, before one can make a will or an LPA, and especially for an elderly loved one, you may want to consider an assessment of mental capacity.
The lawyer’s duty to ask the right questions
An LPA can only be witnessed by a Certificate Issuer (CI), who can either be a registered psychiatrist, a practising lawyer, or a medical practitioner accredited by the Office of the Public Guardian. The CI has to ask the right questions and ensure that the donor (the person making the LPA) understands the purpose and scope of the LPA. This is also known as having the requisite mental capacity. Although no formal medical assessment of the donor’s mental state/capacity is required at this point, if the CI has doubts on the donor’s ability to provide instructions, he ought to request that a medical assessment be conducted by a medical professional.
A will is a legal document that the testator executes setting out how he/she wants to distribute and dispose of his/her assets upon death. A person must have testamentary capacity before he/she can give instructions and execute a will.
Establishing mental capacity would be crucial not just to an LPA or a Will, but any document where the person is signing a document or contract that gives away an asset, a power, or some form of gift. This would include powers of attorney, deed of gifts or declaratory documents such as affidavits or statutory declarations.
The donor is assessed if he/she is able to make a decision, based on the guidelines stipulated in Section 5 of the Mental Capacity Act. A person is unable to make a decision for himself/herself if he/she is unable to :
- understand the information relevant to the decision;
- retain that information;
- use or weigh that information as part of the process of making the decision; or
- communicate his decision (whether by talking, using sign language or any other means).
While this is not a definitive medical assessment, the use of a simple and abbreviated mental test by asking a series of questions can be used as a very rough guide of mental capacity:
- What is the year?
- What is the time? (within 1 hour)
- What is your age?
- What is the date of birth?
- What is your home address?
- Where are we now?
- Who is our country’s Prime Minister?
- What is his/her job? (show picture of fireman/police/nurse)
- Memory Phrase “42 Bukit Panjang Road”
- Count backwards from 20 to 1
- Recall memory phrase
The assessment of mental and testamentary capacity can only be carried out formally by medical professionals at a health institution. These health institutions may require submission of an application before the medical report may be prepared.
The particular psychiatric tests used in assessing mental and testamentary capacity may differ from those used in mental competency assessments. This is given that testamentary capacity refers to a specific cognitive ability to make a will.
The determination of mental capacity can sometimes be overlooked by well-meaning relatives and loved ones who may be of the view that they can speak for the elderly person, having known them for so long. The duty of the lawyer is to ensure that clear and independent instructions can be properly obtained from the elderly person in an environment where there is no undue influence, duress or pressure. Only then will the document that is being signed stand up to scrutiny in a court of law should there ever be a dispute arising from its execution by that elderly person.
Lexton Law Corporation
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