THE LASTING POWER OF ATTORNEY (LPA)

What is mental incapacity under the LPA regime?

what is mental incapacity - LPA

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The Lasting Power of Attorney (LPA) – What is it?

Under the Mental Capacity Act (MCA), individuals who wish to make advance plans for themselves can do so through a legal document known as the Lasting Power of Attorney (LPA). The LPA allows the donor to appoint a donee to act or make decisions on his behalf in matters relating to his personal welfare and/or property and finances.

The LPA framework facilitates anticipatory decision making, allowing one to plan for the future and better manage the risks to our personal welfare and assets.

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Mental Incapacity

The Donee can only exercise his powers under the LPA when the Donor is mentally incapacitated.

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What is Incapacity?

  • MCA recognises that mental incapacity is distinct from mental illness
  • Mental Incapacity can be temporary – e.g. intoxication
  • S4 MCA: Unable to make a decision for himself in relation to the matter because of, or a disturbance in the functioning of, the mind or brain.

➔ Mental Incapacity is issue and time specific.

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How is mental incapacity assessed?

Re BKR [2013] SGHC 201

2 Step Test

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  1. Functional Component: Individual unable to make decision for himself in relation to the matter

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S5 MCA: A person is unable to make a decision where he cannot:-

  • Understand the information;
  • Retain the information;
  • Use or weigh information; or
  • Communicate his decision.
  1. Clinical Component: An Impairment of, or disturbance in the functioning of, the mind or brain which causes the inability
  • Assesed on the totality of evidence before the court

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RELATED ARTICLES:

The Lasting Power of Attorney

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