fc_judgments_version: 27

This data as json

_id _item _version _commit tags date court case-number title citation url counsel timestamp coram html _item_full_hash
27 21 1 1292 
[
    "Mental Capacity Act \u2013 Appointment of Deputies \u2013 Revocation of Appointment"
]
 2024-03-15 Family Court FC/OSM 253/2023 and FC/Summons 3230/2023 WVG v WVH and another [2024] SGFC 14 https://www.lawnet.sg:443/lawnet/web/lawnet/free-resources?p_p_id=freeresources_WAR_lawnet3baseportlet&p_p_lifecycle=1&p_p_state=normal&p_p_mode=view&_freeresources_WAR_lawnet3baseportlet_action=openContentPage&_freeresources_WAR_lawnet3baseportlet_docId=%2FJudgment%2F31182-SSP.xml 
[
    "Tan Sia Khoon Kelvin David (Vicki Heng Law Corporation) for the Plaintiff",
    "Eva Teh Jing Hui and Joan Peiyun Lim-Casanova (K&L Gates Straits Law LLC) for the Defendants."
]
 2024-03-20T16:00:00Z[GMT] Shobha Nair <root><head><title>WVG v WVH and another</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> WVG <em>v</em> WVH and another </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/31182-SSP.xml')">[2024] SGFC 14</a></span></h2><table id="info-table"><tbody><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Case Number</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">FC/OSM 253/2023 and FC/Summons 3230/2023</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Decision Date</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">15 March 2024</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Tribunal/Court</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body">Family Court</td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Coram</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> Shobha Nair </td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Counsel Name(s)</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> Tan Sia Khoon Kelvin David (Vicki Heng Law Corporation) for the Plaintiff; Eva Teh Jing Hui and Joan Peiyun Lim-Casanova (K&amp;L Gates Straits Law LLC) for the Defendants. </td></tr><tr class="info-row"><td class="txt-label" style="padding: 4px 0px; white-space: nowrap" valign="top">Parties</td><td class="info-delim1" style="padding: 4px">:</td><td class="txt-body"> WVG — WVH — WVI </td></tr></tbody></table> <p class="txt-body"><span style="font-style:italic">Mental Capacity Act</span> – <span style="font-style:italic">Appointment of Deputies</span> – <span style="font-style:italic">Revocation of Appointment</span></p> <p></p><table border="0" cellpadding="0" cellspacing="0" width="100%"><tbody><tr><td width="80%"><p class="Judg-Hearing-Date">15 March 2024</p></td><td><p class="Judg-Date-Reserved"></p></td></tr></tbody></table><p></p> <p class="Judg-Author"> District Judge Shobha Nair:</p> <p class="Judg-Heading-1">Introduction</p> <p class="Judg-1"><a id="p1_1"></a>1       The plaintiff in this matter sought to revoke an order appointing the defendants as deputies (deputyship order) for their father (P) who has lost the mental capacity to make decisions for himself in respect of his personal welfare and his property and affairs. P and his wife (the mother of the defendants) have been separated since 2014 when P left the matrimonial home to stay with the plaintiff and her children. The plaintiff also sought by way of summons 3230/2023, to be a joint deputy with the defendants, should the revocation application not be granted. She sought to be allowed access to P which was strongly resisted by the defendants.</p> <p class="Judg-1"><a id="p1_2"></a>2       Having considered the evidence, I made the following orders:</p> <p class="Judg-2"><a id="p1_2-p2_a"></a>a.     The application for the revocation of the deputyship order was dismissed.</p> <p class="Judg-2"><a id="p1_2-p2_b"></a>b.     The plaintiff however shall be appointed as deputy jointly with the defendants insofar as it relates to the management of P’s personal welfare. The management of P’s property and affairs shall continue to remain with the defendants who are subject to the supervision of the Office of the Public Guardian and would need to report annually on the performance of their obligations in this regard.</p> <p class="Judg-2"><a id="p1_2-p2_c"></a>c.     P shall continue to stay with the defendants if there is no agreement amongst the parties on the living arrangements for P. The plaintiff shall be permitted to visit and care for P daily if she wishes to and shall be jointly responsible for the management of P’s health. All parties are to be privy to communication with caregivers and medical professionals and all decisions are to be made jointly in the interests of P.</p> <p class="Judg-2"><a id="p1_2-p2_d"></a>d.     Each party is to bear his/her own costs.</p> <p class="Judg-1"><a id="p1_3"></a>3       The plaintiff appeals against the order dismissing the application for the revocation of the deputyship order and the dismissal of her request to be appointed as co-deputy for P’s property and affairs. The defendants appeal against all orders save for the order dismissing the application for revocation of the deputyship order.</p> <p class="Judg-Heading-1">Undisputed Facts</p> <p class="Judg-1"><a id="p1_4"></a>4       The plaintiff and P entered a romantic relationship when P was still married. P moved in with the plaintiff and the latter’s children in 2014. Between 2015 and 2022 the couple travelled together on at least 24 occasions to various destinations.<span class="FootnoteRef"><a href="#Ftn_1" id="Ftn_1_1"><sup>[note: 1]</sup></a></span>A motorcycle accident whilst in Krabi in 2016 resulted in P’s urgent return to Singapore. He was admitted to a hospital and brain scans revealed the need for surgery. P did not provide his consent. Although he appeared to show improvement a few months after the accident, P’s health declined significantly from 2018. He was also diagnosed with dementia in January 2020 after a fall while at the plaintiff’s home.<span class="FootnoteRef"><a href="#Ftn_2" id="Ftn_2_1"><sup>[note: 2]</sup></a></span></p> <p class="Judg-1"><a id="p1_5"></a>5       P’s wife filed for divorce in April 2021. In July 2022, the defendants filed an application seeking an order for their appointment as deputies (FC/OSM233/2022). They did not inform the Court of the relationship between P and the plaintiff and only detailed the immediate family members as relevant persons. One of the key reasons in seeking the appointment was to enable counsel to be instructed to act for P in the divorce proceedings. Interim judgment was granted on 9 November 2021 and orders on ancillary matters have been made.</p> <p class="Judg-1"><a id="p1_6"></a>6       I issued the order appointing the defendants as deputies in September 2022, having been satisfied that they had a proper plan to care for P and as children of P, are likely to provide long term care for their father.</p> <p class="Judg-1"><a id="p1_7"></a>7       In April 2023, a summons was filed by the defendants seeking that the plaintiff be prevented from access to P. It was only then known to the Court that P was in a long-term relationship with the plaintiff. I had directed that the summons be served on the plaintiff.</p> <p class="Judg-1"><a id="p1_8"></a>8       In August 2023, the plaintiff filed the present application in OSM 253/2023 and subsequently in October 2023, summons 3230/2023.</p> <p class="Judg-Heading-1">Should the order be revoked on account of non-disclosure of a relevant fact?</p> <p class="Judg-1"><a id="p1_9"></a>9       Section 20 (7) of the Mental Capacity Act (2008) (MCA) provides for a Court to discharge a deputyship order or vary the same. Section 20(8) of the Act provides specific circumstances when an appointment of a deputy may be revoked. For ease of reference, these are when a Court is satisfied that:</p> <p class="Judg-Quote-1"> <em>a</em>)     <em>A deputy is convicted, on or after 1 September 2018 (but not before the deputy’s appointment by the court), of an offence (whenever committed) of criminal misappropriation, criminal breach of trust, cheating, theft or extortion or any other offence involving fraud or dishonestly, whether as against P or another person;</em> </p> <p class="Judg-Quote-1"> <em>b</em>)     <em>The deputy engages or has engaged in conduct that contravenes the deputy’s authority conferred by the court, or that is not in P’s best interests (whether or not the deputy is acting under a court order);</em> </p> <p class="Judg-Quote-1"> <em>c</em>)     <em>The deputy proposes to engage in conduct that would contravene the deputy’s authority conferred by the court, or that would not be in P’s best interests (whether or not the deputy is acting under a court order); or</em> </p> <p class="Judg-Quote-1"> <em>d</em>)     <em>Where the deputy is a professional deputy, the registration of the deputy as a professional deputy is cancelled.</em> </p> <p class="Judg-1"><a id="p1_10"></a>10     When the defendants filed their application to be appointed as deputies, their counsel at the time did not inform the Court that P was in a relationship with the plaintiff and that they were living together. An application to be appointed as a deputy can be made by anyone who has been giving care or is able to give care to P. It is not only available to family members. In fact, in the supporting affidavit filed by the defendants in support of their appointment in OSM 233/2022, they omitted to indicate the name of the plaintiff in a table which is titled “other relevant persons” and which provides examples of such persons to be those that are in a close relationship with P or who give care to P.<span class="FootnoteRef"><a href="#Ftn_3" id="Ftn_3_1"><sup>[note: 3]</sup></a></span> The omission to inform the Court of this has serious consequences as it shut out the plaintiff and prevented her voice from being heard. Even if the children of P may not have a good relationship with the plaintiff and may even view her as instrumental in the break-up of the relationship between their parents, they cannot take the position that P need not have the plaintiff participate in P’s care. If it is evident that P wanted the plaintiff to be a part of his life, the responsibility of a Court is to take that into consideration in determining the best care plan for P.</p> <p class="Judg-1"><a id="p1_11"></a>11     P has lost his autonomy to decide on matters pertaining to his personal welfare and property and affairs. It would be important to look at the words and actions of P while he had the capacity to make his own decisions, on what would serve him when he no longer has that capacity. In fact, the newly engaged counsel for the defendants acknowledged that the defendants’ omission to state the plaintiff as a relevant person, was regrettable.<span class="FootnoteRef"><a href="#Ftn_4" id="Ftn_4_1"><sup>[note: 4]</sup></a></span></p> <p class="Judg-1"><a id="p1_12"></a>12     The omission of facts may well occasion the revocation of orders if material. This was seen in <b><em>Wong Meng Cheong</em></b> v <b><em>Ling Ai Wah</em></b><span class="FootnoteRef"><a href="#Ftn_5" id="Ftn_5_1"><sup>[note: 5]</sup></a></span> where the Court found <em>inter alia</em> that the conduct of the deputies was reprehensible and violated the interests of P. In the case before me, the failure to recognise the plaintiff as a relevant person does not in and of itself necessitate a revocation unless the appointment of the defendants was inappropriate.</p> <p class="Judg-Heading-1">Was the appointment of the defendants as deputies appropriate?</p> <p class="Judg-1"><a id="p1_13"></a>13     There is a need for stable and sustainable care for persons without mental capacity. The appointment of adult children as deputies for their parent(s) is desirable, provided they have the capacity to care and have good care plans in place. With P’s marriage having been dissolved, the closest family members of P are his children. They are both working adults and are well placed to care for P and to manage his property and affairs. The nature of kinship made their appointments for the long term feasible.</p> <p class="Judg-1"><a id="p1_14"></a>14     It was the position of the plaintiff that when the defendants were appointed as deputies, they did not give proper care to P. She spoke for example of an incident caught on her closed-circuit television which showed that the 2nd defendant was on his mobile phone while P struggled to get into bed to rest. This and all other allegations of neglect was vehemently denied by the defendants. They made their own allegations against the plaintiff. It was their position that P was a fit and healthy individual prior to him leaving the matrimonial home to stay with the plaintiff. They pointed to various incidents of neglect even as recently as February 2023 which resulted in another admission to hospital. Allegations of neglect were similarly denied by the plaintiff. It would be difficult to assess the accuracy of the allegations made by the parties. Caregiving is challenging and no caregiver is perfect. While I understand the emotion behind the allegations, I did not find any pattern of neglect by either the plaintiff or the defendants. Much of the events after the hospital admission in February 2023 however, were relevant to the applications before me.</p> <p class="Judg-1"><a id="p1_15"></a>15     Upon his discharge from hospital, the defendants placed P in a serviced apartment. This appeared to have also been an effort to prevent access to the plaintiff. The plaintiff pointed to the fact that P had been moved from one hotel/service apartment to another from March 2023<span class="FootnoteRef"><a href="#Ftn_6" id="Ftn_6_1"><sup>[note: 6]</sup></a></span> without anyone giving him proper care. She said she visited him every day, much to the chagrin of the defendants who did not permit such visitation. She claimed that P was not fed properly, and medication not properly administered. Again, this was denied by the defendants. The defendants then took active steps to restrict or prevent the plaintiff’s access to P. The defendants also pointed to a withdrawal of a total amount of $450 000 from P’s bank account during the period P was staying with the plaintiff.<span class="FootnoteRef"><a href="#Ftn_7" id="Ftn_7_1"><sup>[note: 7]</sup></a></span> As P is a man of sound financial means, the suggestion was that the plaintiff ought not to oversee P’s financial matters to prevent any possible mismanagement.</p> <p class="Judg-1"><a id="p1_16"></a>16     I was concerned by the fact that P was made to move from one hotel to another. More permanent accommodation and care arrangements should have been put in place when or shortly after the orders appointing the defendants as deputies were issued. Any mistrust they had over the care provided by the plaintiff was not responded to by the provision of better care but instead, what appears to be even poorer arrangements. An individual in P’s shoes would require close supervision, good nutrition, and a stable physical environment. P was largely left to himself in these hotels. I expressed this to the defendants’ previous counsel during various case conferences.</p> <p class="Judg-1"><a id="p1_17"></a>17     When the matter came up for hearing, the care arrangements were significantly different. A two-bedroom apartment was rented for P to stay in and a full-time helper for his care was engaged by the defendants. The 2nd defendant spoke of how he attended a 3-day course to help him care for P better and a dietician was engaged to plan P’s meals.<span class="FootnoteRef"><a href="#Ftn_8" id="Ftn_8_1"><sup>[note: 8]</sup></a></span></p> <p class="Judg-1"><a id="p1_18"></a>18     While the initial plans of the defendants fell short of what would be expected for P, the steps the defendants have taken since, and which are in place today, are satisfactory. While it is possible that the defendants took these steps quickly in order to satisfy the Court, I do not believe that they would renege on their obligations after the hearing. There was no need for the revocation of the order. The question that stood to be considered instead was whether the request of the plaintiff to be a co-deputy of P ought to be granted.</p> <p class="Judg-Heading-1">Would it be in the best interests of P to enable the plaintiff to be a co-deputy?</p> <p class="Judg-1"><a id="p1_19"></a>19     It is understandable that the children of P have a deep sense of suspicion and even scepticism towards the plaintiff who entered a relationship with their father when the latter was still married. Even as she claimed that she did not know he was married at the time the relationship started, she came to know of it but continued. While the feelings of the children can certainly be understood, it is not the Court’s place to deny the plaintiff a place in the care of P if it was appropriate to do so. P and the plaintiff were in a close relationship, and it was P’s desire to stay with the plaintiff. The plaintiff did accompany P for his various medical appointments, and they lived as a family with the plaintiff’s children. Section 6 of the MCA addresses the issue of best interests and specifically provides at s 6(8) that a Court should consider:</p> <p class="Judg-Quote-1">a)     <em>the person’s past and present wishes and feelings (and in particular, any relevant written statement made by the person when the person had capacity);</em> </p> <p class="Judg-Quote-1">b)     <em>the beliefs and values that would be likely to influence his or her decision if the person had capacity; and</em> </p> <p class="Judg-Quote-1">c)     <em>the other factors that the person would be likely to consider if the person were able to do so</em>.</p> <p class="Judg-1"><a id="p1_20"></a>20     I was of the view that the plaintiff should continue to play a part in the personal welfare of P and ordered accordingly. P was clearly comfortable in the plaintiff’s presence as seen in various <em>Whatsapp</em> messages.<span class="FootnoteRef"><a href="#Ftn_9" id="Ftn_9_1"><sup>[note: 9]</sup></a></span> There was no need to deny her continued engagement in his care. At the same time, the health of P was such that it was imperative that there be a constant care provider and minimal disruption to his routine. The presence of a domestic helper at his rented residence which was situated in an area that he was familiar with, was closer to the ideal than to move him back to the plaintiff’s residence. More importantly, P requires care that the plaintiff may not be able to manage effectively, given that she is a working adult. P’s needs may increase over time and a helper who is accessible at all times would be prudent. I ordered that the plaintiff may visit P at any time if P does not live with her and that she be engaged on any medical decisions that may need to be taken. I did not accept the defendants’ position that the plaintiff was a poor caregiver as seen in the numerous times that P had fallen ill when in her care. They pointed to an incident where P ended up in hospital after the plaintiff took him for a meal at a hotel. Given that P suffers from gout, certain foods provided in the buffet should not, they alleged, have been consumed. This reductionist approach to the issue of care was not helpful. For the incident at the hotel, the plaintiff chose to take P for a meal and did not have any intention to cause harm. Unfortunately, the consumption of unsuitable food led to P having to be admitted to hospital. Often even with the best of care, incidents like these do happen. Health issues including gout, a motorcycle accident, a fall while at home – these collectively contributed to the deterioration of P’s health. There was nothing in the evidence that points clearly to the plaintiff as having been so negligent as to have caused it.</p> <p class="Judg-1"><a id="p1_21"></a>21     Similarly, I did not find the argument that the poor relationship between parties is a reason to disqualify the plaintiff from working with the defendants in the care of P. The parties, as adult caregivers share a close relationship with P. There may be many differences in how care should be given. The idea however is to work together and for each to step up in areas where another may not be able to. All the deputies work outside the home and do not have the ability to provide care at all times. Rather more realistically, the domestic helper will be the one managing the day to day needs of P. As explained above, the most challenging issue was where P should stay, and I had ordered that he may remain in his current condominium unit with his children attending to him there if an alternative was not agreed to. It was inappropriate to restrict access by the plaintiff to P and to disengage her from P’s care. However, I did not entrust the plaintiff with the management of P’s property and affairs. Given the suggestion that monies may have been withdrawn in the past from P’s bank account(s) and which therefore require further investigation, and the fact that P had gone through divorce proceedings very recently, necessitated in my view, some degree of caution.</p> <p class="Judg-Heading-1">Costs</p> <p class="Judg-1"><a id="p1_22"></a>22     I had ordered that each party was to bear his or her own costs. Typically for applications under the MCA, costs are drawn from the estate of the person to be assisted (<b><em>TRD</em></b> v <b><em>TRE &amp; Ors</em></b>.)<span class="FootnoteRef"><a href="#Ftn_10" id="Ftn_10_1"><sup>[note: 10]</sup></a></span> unless some other order is warranted.<span class="FootnoteRef"><a href="#Ftn_11" id="Ftn_11_1"><sup>[note: 11]</sup></a></span></p> <p class="Judg-1"><a id="p1_23"></a>23     In this case, the plaintiff was not successful in her main application to revoke the deputyship order nor her request to be appointed as a co-deputy for the property and affairs of P even as she was successful in being appointed as a co-deputy for the personal welfare of P. The defendants even though successful in resisting the revocation of the deputyship order had omitted to inform the Court of the plaintiff’s close relationship with their father which occasioned this litigation. In the circumstances, I was of the view that each party was to bear his or her own costs.</p> <p class="Judg-Heading-1">Conclusion</p> <p class="Judg-1"><a id="p1_24"></a>24     When an individual loses his or her mental capacity, the person who is appointed as deputy would need to always act to serve the best interests of the person to be assisted. The tendency to believe that a certain course of action is in the best interests of P when it is in fact a course that fits the values and beliefs of the deputy would need to be avoided.</p> <p class="Judg-1"><a id="p1_25"></a>25     On the totality of the evidence, it is my view that there was no need to revoke the order appointing the children as deputies. The need for long-term sustainable plans is crucial for P’s wellbeing. I believe the children will be able to provide this. It bears repeating that no plan is perfect but perfect efforts must always be exercised. The omission to identify the plaintiff as a relevant person while regrettable, is not fatal. The continued relevance of the plaintiff in the life of P is reflected in my orders enabling her to work with P’s children in the management of P’s care.</p> <hr align="left" size="1" width="33%"><p class="Footnote"><sup><a href="#Ftn_1_1" id="Ftn_1">[note: 1]</a></sup>Paragraph 10 of the plaintiff’s affidavit of 4 August 2023.</p><p class="Footnote"><sup><a href="#Ftn_2_1" id="Ftn_2">[note: 2]</a></sup>Ibid. at paragraph 27.</p><p class="Footnote"><sup><a href="#Ftn_3_1" id="Ftn_3">[note: 3]</a></sup>Pages 8 and 9 of the Supporting Affidavit of the defendants dated 6 July 2022.</p><p class="Footnote"><sup><a href="#Ftn_4_1" id="Ftn_4">[note: 4]</a></sup>Page 9D of NE dated 1 December 2023.</p><p class="Footnote"><sup><a href="#Ftn_5_1" id="Ftn_5">[note: 5]</a></sup><a class="pagecontent" href="javascript:viewPageContent('/SLR/[2012] 1 SLR 0549.xml')">[2012] 1 SLR 549</a> (HC)</p><p class="Footnote"><sup><a href="#Ftn_6_1" id="Ftn_6">[note: 6]</a></sup>Paragraph 44 of the plaintiff’s affidavit of 4 August 2023.</p><p class="Footnote"><sup><a href="#Ftn_7_1" id="Ftn_7">[note: 7]</a></sup>Paragraph 18 of the defendants’ affidavit of 28 April 2023.</p><p class="Footnote"><sup><a href="#Ftn_8_1" id="Ftn_8">[note: 8]</a></sup>Paragraph 27-29 of the second defendant’s affidavit dated 15 November 2023.</p><p class="Footnote"><sup><a href="#Ftn_9_1" id="Ftn_9">[note: 9]</a></sup>CWS-7 of the plaintiff’s affidavit of 4 August 2023.</p><p class="Footnote"><sup><a href="#Ftn_10_1" id="Ftn_10">[note: 10]</a></sup><a class="pagecontent" href="javascript:viewPageContent('/Judgment/19329-SSP.xml')">[2016] SGFC 55</a>.</p><p class="Footnote"><sup><a href="#Ftn_11_1" id="Ftn_11">[note: 11]</a></sup>See s 40 (1) and (2) of the MCA and Rules 190 and 852(2) of the Family Justice Rules 2014.</p></div></content></root> fde542013219fd00cacf093290ae582f5a93242b

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