fc_judgments_version: 6

This data as json

_id _item _version _commit tags date court case-number title citation url counsel timestamp coram html _item_full_hash
6 6 1 1274 
[
    "Mental Disorders and Treatment \u2013 Mental Capacity Act - Lasting Power of Attorney"
]
 2023-11-07 Family Court Originating Summons (Mental Capacity) 258 of 2021 WRM v WRN and another [2023] SGFC 36 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%2F30628-SSP.xml 
[
    "Mr Philip Fong Yeng Fatt, Mr Sui Yi Siong (Xu Yixiong) and Ms Alekhya Kanteti (M/s Harry Elias Partnership LLP) for the Plaintiff",
    "Mr Ling Daw Hoang Philip, Mr Lim Haan Hui and Mr Low Ziron (M/s Wong Tan & Molly Lim LLC) for the 1st and 2nd Defendants."
]
 2023-11-15T16:00:00Z[GMT] Miranda Yeo <root><head><title>WRM v WRN and another</title></head><content><div class="contentsOfFile"> <h2 align="center" class="title"><span class="caseTitle"> WRM <em>v</em> WRN and another </span><br><span class="Citation offhyperlink"><a class="pagecontent" href="javascript:viewPageContent('/Judgment/30628-SSP.xml')">[2023] SGFC 36</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">Originating Summons (Mental Capacity) 258 of 2021</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">07 November 2023</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"> Miranda Yeo </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"> Mr Philip Fong Yeng Fatt, Mr Sui Yi Siong (Xu Yixiong) and Ms Alekhya Kanteti (M/s Harry Elias Partnership LLP) for the Plaintiff; Mr Ling Daw Hoang Philip, Mr Lim Haan Hui and Mr Low Ziron (M/s Wong Tan &amp; Molly Lim LLC) for the 1st and 2nd 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"> WRM — WRN — WRO </td></tr></tbody></table> <p class="txt-body"><span style="font-style:italic">Mental Disorders and Treatment</span> – <span style="font-style:italic">Mental Capacity Act - Lasting Power of Attorney</span></p> <p></p><table border="0" cellpadding="0" cellspacing="0" width="100%"><tbody><tr><td width="80%"><p class="Judg-Hearing-Date">7 November 2023</p></td><td><p class="Judg-Date-Reserved"></p></td></tr></tbody></table><p></p> <p class="Judg-Author"> District Judge Miranda Yeo:</p> <p class="Judg-Heading-1">Introduction</p> <p class="Judg-1"><a id="p1_1"></a>1       P, the patriarch of the family, executed a lasting power of attorney (“LPA”) on 28 October 2020 appointing one of his sons (the 1<sup>st</sup> Defendant) and one of his daughters (the 2<sup>nd</sup> Defendant) as donees to make decisions on his behalf when he lacked mental capacity. The Plaintiff, another of P’s sons, seeks to revoke the appointment of the 1<sup>st</sup> and 2<sup>nd</sup> Defendants as donees of P under the LPA on the ground that P lacked mental capacity at the time that the LPA was executed or alternatively, on the ground that P’s donees have engaged in conduct that is not in P’s best interests.</p> <p class="Judg-1"><a id="p1_2"></a>2       The LPA was activated on 26 January 2021, about 3 months after its execution, when P was diagnosed with dementia with moderate severity by Dr CMS. It is not disputed that P currently lacks mental capacity.</p> <p class="Judg-1"><a id="p1_3"></a>3       The sole dispute between the parties at the hearing of the originating summons is whether the LPA should be revoked pursuant to section 17(4)(b) of the Mental Capacity Act 2008 (“MCA”) based on the grounds provided by the Plaintiff. There are no allegations of fraud or undue pressure being applied to induce P to make the LPA.</p> <p class="Judg-1"><a id="p1_4"></a>4       The application by the Plaintiff to revoke the LPA was dismissed.</p> <p class="Judg-Heading-1">Facts </p> <p class="Judg-Heading-2">The parties</p> <p class="Judg-1"><a id="p1_5"></a>5       P is presently 84 years old. He is a widow and had 6 children, 3 sons and 3 daughters. One of P’s daughters died during the course of the proceedings (“the late daughter”).</p> <p class="Judg-1"><a id="p1_6"></a>6       P has been in the pig farming business since the 1970s. There is a holding company for P’s businesses. P, the Plaintiff and 1<sup>st</sup> Defendant are directors of this company. The Plaintiff is the managing director of the company. P has a residential property in his sole name as well as 2 commercial properties which he owns with the Plaintiff and 1<sup>st</sup> Defendant as joint tenants.</p> <p class="Judg-Heading-2">Background to the Dispute </p> <p class="Judg-1"><a id="p1_7"></a>7       It is the Plaintiff’s case that he has a close relationship of trust with P and that when P was travelling to China frequently for business, he looked to the Plaintiff to hold the family and assets together. According to the Plaintiff, it has been P’s wish for his 3 male children and his only grandson (the Plaintiff’s son) to reside with him in the residential property and for the sons and grandson to continue residing there even after P’s passing. Out of respect for P’s wishes, the sons and grandson are living with P at the residential property.</p> <p class="Judg-1"><a id="p1_8"></a>8       The Plaintiff was not aware of the execution of the LPA at the time the LPA was executed before a solicitor, Ms A. He only found out about the LPA in April 2021 when the 1<sup>st</sup> and 2<sup>nd</sup> Defendants made claims against him on P’s behalf. According to the Plaintiff, P lacked mental capacity at the time the LPA was executed. The 1<sup>st</sup> Defendant and the 2<sup>nd</sup> Defendant take the position that the Plaintiff’s allegations are bare and unsubstantiated.</p> <p class="Judg-1"><a id="p1_9"></a>9       The Plaintiff and the Defendants share a strained relationship. There is litigation in the General Division of the High Court between the Plaintiff and the 1<sup>st</sup> Defendant over the 2 commercial properties which they hold with P as joint tenants. There were also personal protection order applications which parties had taken out which had been withdrawn by the time of the hearing of the originating summons.</p> <p class="Judg-Heading-1">Issues to be determined </p> <p class="Judg-1"><a id="p1_10"></a>10     The issues to be determined are –</p> <p class="Judg-2"><a id="p1_10-p2_a"></a>(a)     did P have mental capacity at the time he executed the LPA on 28 October 2020; and/or</p> <p class="Judg-2"><a id="p1_10-p2_b"></a>(b)     have the Defendants, as donees appointed by P under the LPA, not been acting in P’s best interest; and</p> <p class="Judg-2"><a id="p1_10-p2_c"></a>(c)     should P’s LPA be revoked.</p> <p class="Judg-Heading-1">Issue 1: Did P have mental capacity at the time he executed the LPA? </p> <p class="Judg-1"><a id="p1_11"></a>11     In <em>Re BKR</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/17323-SSP.xml')">[2015] SGCA 26</a> at [55], the Court of Appeal held that the test for capacity in s 4(1) of the MCA contains a functional as well as a clinical component. The functional component is that P is “unable to make a decision for himself”, and the clinical component is that this inability stems from an impairment of the mind. There must be a causal connection between the inability to make decisions and the mental impairment. P must be unable to make a decision “because of” his mental impairment. At [134], the court held -</p> <p class="Judg-Quote-1">As we have mentioned, the test for capacity in s4(1) of the MCA may be thought of as having a functional and a clinical component – the functional aspect is that P must be unable to make a decision, and the clinical aspect is that this inability must be caused by a mental impairment. It is not difficult to see that we require the assistance of expert evidence when addressing the clinical component of the test: we need medical professionals to tell us whether P has a mental impairment based on the observable symptoms and any other diagnostic tools available, and if so, what that impairment is, and what effect it has on P’s cognitive abilities. But as to the functional component, it is in our judgment a question for us to grapple with leaving perhaps a limited scope for the involvement of the medical experts.</p> <p class="Judg-1"><a id="p1_12"></a>12     Section 5 of the MCA provides –</p> <p class="Judg-Quote-1">(1)    For the purposes of section 4, a person is unable to make a decision for himself or herself if the person is unable —</p> <p class="Judg-QuoteList-2">(a)    to understand the information relevant to the decision;</p> <p class="Judg-QuoteList-2">(b)    to retain that information;</p> <p class="Judg-QuoteList-2">(c)    to use or weigh that information as part of the process of making the decision; or</p> <p class="Judg-QuoteList-2">(d)    to communicate his or her decision (whether by talking, using sign language or any other means).</p> <p class="Judg-1"><a id="p1_13"></a>13     Although there were affidavits from 6 doctors and a medical report from Associate Professor LWS which was admitted by consent, references were made mainly to the affidavits of Dr TCH, Dr KK (the 2 doctors whom P consulted prior to the execution of the LPA), Dr CMS (who activated the LPA) and Dr CT (the doctor appointed by the Plaintiff) during the hearing. The other doctors (Associate Professor LWS, Dr DY, and Dr CHT) affirmed Dr Chong’s diagnosis of dementia and lack of capacity.</p> <p class="Judg-1"><a id="p1_14"></a>14     The Plaintiff accepted that he bore the burden of proof to show that P had no capacity to make the LPA on 28 October 2020. He submitted that on a review of all relevant evidence, P lacked capacity to execute the LPA on 28 October 2020 as both the clinical and functional components of the test for mental incapacity are satisfied. It is not disputed that P lacked capacity as at 26 January 2021 when the LPA was activated. The Plaintiff chose not to cross-examine the doctors and made submissions based on the medical reports as well as Dr TCH’s notes (parts of which are illegible). A summary of the Plaintiff’s submissions is as follows –</p> <p class="Judg-2"><a id="p1_14-p2_a"></a>(a)     As early as 6 July 2019, P consulted Dr TCH at CK Family Clinic for complaints of increasing forgetfulness and poorer memory. An Abbreviated Mental Tested (“AMT”) conducted by Dr TCH showed that P could answer 8 out of 10 questions correctly.</p> <p class="Judg-2"><a id="p1_14-p2_b"></a>(b)     On 14 December 2019, P attended before Dr KK at CK Family Clinic with the late daughter for Vaso-Motor Rhinitis and occasional lapses of recent memory. Dr KK prescribed a trial course of Donepezil as a means of preventing further lapses of memory.</p> <p class="Judg-2"><a id="p1_14-p2_c"></a>(c)     On 17 October 2020, P consulted with Dr TCH for complaints of increasing forgetfulness and poorer memory and requested for another assessment. The late daughter brought P to this consultation and observed some deterioration in P’s memory function. P was able to answer 8 out of 10 questions for another AMT, but in an Elderly Cognitive Assessment Questionnaire (“ECAQ”), P scored 5 out of 10. As P’s symptoms were noted to have deteriorated and he managed to score 5 out of 10 on the ECAQ, possible cognitive impairment was considered. Dr TCH had the impression P had mild cognitive impairment. Dr TCH advised P and the late daughter to refer P to a psycho-geriatrician for further specialist assessment.</p> <p class="Judg-2"><a id="p1_14-p2_d"></a>(d)     Instead of bringing P to a psycho-geriatrician for an assessment, P was brought to a lawyer, Ms A to execute his LPA.</p> <p class="Judg-2"><a id="p1_14-p2_e"></a>(e)     Dr TCH and Dr KK’s reports show that P was suffering from an impairment or disturbance in the function of his mind by 28 October 2020.</p> <p class="Judg-2"><a id="p1_14-p2_f"></a>(f)     Less than three months after the LPA was executed, the LPA was activated on 26 January 2021 by Dr CMS. Dr CMS diagnosed P with Alzheimer’s disease. Dr CMS’s opinion was that P did not have mental capacity and his mental incapacity was likely to be permanent.</p> <p class="Judg-2"><a id="p1_14-p2_g"></a>(g)     Although Dr TCH opined that P still had mental capacity on 17 October 2020 (as mild cognitive impairment is a condition in which a person experiences slight but noticeable decline in mental abilities compared to others of the same age but the changes are not severe enough to interfere with daily life and activities), the Plaintiff argued that based on Dr TCH’s handwritten notes of the consultation, Dr TCH was actually of the view that P had significant cognitive impairment and that Dr TCH’s impression of mild cognitive impairment does not hold water. Dr TCH’s attempt to contradict the contemporaneous notes must be rejected.</p> <p class="Judg-2"><a id="p1_14-p2_h"></a>(h)     Dr TCH is not a specialist geriatrician and is clearly not trained to assess mental capacity as a general practitioner. Dr TCH’s opinion on P’s mental capacity is affected by hindsight bias (Dr TCH’s report is premised on Dr CT’s Report, which indicated that P was able to express his opinions notwithstanding his diagnosis of dementia in October 2021). Dr TCH’s report also fails to explain or elaborate on the analytical process by which its conclusions were reached.</p> <p class="Judg-2"><a id="p1_14-p2_i"></a>(i)     Although Dr KK stated that there were no other symptoms to suggest that P had a degenerative disorder when P consulted him on 14 December 2019 and that his prescription of a trial course of Donepezil does not necessarily indicate that P suffered from mild dementia at the time of issue, the Plaintiff, relying on medical literature indicating that Donepezil is approved for treatment of mild or moderate dementia due to Alzheimer’s disease and the fact that the doctors who saw P after he was assessed to lack capacity prescribed Donepezil to him, argues that Dr KK’s prescription of Donepezil is evidence that P was already suffering from some form of cognitive impairment as of 14 December 2019.</p> <p class="Judg-2"><a id="p1_14-p2_j"></a>(j)     Taking into account the preparation of and execution of the LPA and the surrounding circumstances, it is clear that P was not able to understand what he was signing on 28 October 2020. The terms of the LPA allows the donees to sell P’s residential property without court approval were contrary to P’s previously expressed wishes that his three male children and only grandson should continue to reside at the residential property, thus demonstrating that P did not understand the consequences of executing the LPA.</p> <p class="Judg-2"><a id="p1_14-p2_k"></a>(k)     Little or no weight should be given to Ms A’s Affidavit on the execution of the LPA and her account that P was able to understand and fully understand her explanations regarding the LPA and to consider and make decisions independently. Ms A is the certificate issuer of P’s LPA. Ms A did not have complete information about P’s condition and was clearly not trained to medically assess P’s mental capacity. Ms A’s lack of any contemporaneous attendance notes to substantiate her account seriously undermines the reliability of her testimony.</p> <p class="Judg-1"><a id="p1_15"></a>15     The Defendants’ arguments are as follows –</p> <p class="Judg-2"><a id="p1_15-p2_a"></a>(a)     The Plaintiff has failed to discharge the burden of proving that P lacked capacity when he executed the LPA. The evidence that has been adduced by the Plaintiff’s own medical expert, Dr CT, in fact supports a finding that P did have capacity at the time that he executed the LPA. Although the Defendants submit that Dr CT’s report should be disregarded as she did not remain non-partisan, Dr CT’s view that notwithstanding his diagnosis of dementia, P is able to express his opinions at the time of her examination of P on 5 October 2021 and 7 October 2021 supports a finding that P had the requisite clinical component of capacity when P executed the LPA a year earlier on 28 October 2020.</p> <p class="Judg-2"><a id="p1_15-p2_b"></a>(b)     Having regard to the relevant factual and expert medical evidence, P had the requisite capacity to execute the LPA.</p> <p class="Judg-2"><a id="p1_15-p2_c"></a>(c)     The Plaintiff’s sole basis for claiming that P lacked the clinical component of capacity is the fact that Dr KK had prescribed Donepezil to P. The Plaintiff has not led any medical expert evidence which would support a finding that P lacked the clinical component of capacity or the Plaintiff’s belief that the prescription of Donepezil by Dr KK was intended to treat P’s dementia due to Alzheimer’s disease. The Plaintiff’s expert, Dr CT, does not express any opinion on P’s mental capacity at the time of the execution of the LPA.</p> <p class="Judg-2"><a id="p1_15-p2_d"></a>(d)     The contemporaneous medical evidence shows that P possessed the clinical component of capacity at the time he executed the LPA on 28 October 2020. P had been consulting Dr KK for more than 10 years. Occasionally, when Dr KK is not available, P would consult Dr TCH who is from the same family practice. On 17 October 2020, 11 days before P executed the LPA, Dr TCH noted P to be conscious, orientated and rational and was able to express clearly the reason for his visit. P was concerned about his increasing forgetfulness and expressed his wish for further assessment and medical care. P was able to understand and answer the questions from the screening questionnaire. While Dr TCH was of the view that P had passed the AMT, she was unable to comment if the cut-off score of 5 for ECAQ was too stringent for the identification of mild cognitive impairment. (Dr TCH explained in the report that the AMT allows for age and education cut-off scores but the ECAQ has no education or age adjusted cut-off values.) Although Dr Tong was under the impression (which is distinct from a diagnosis) that P may have been suffering from mild cognitive impairment, she nevertheless observed that P was able to clearly express his concern for the deterioration of his memory function and requested for tests to check if he has dementia and able to understand and express his agreement for further specialist assessment and medical care. Dr TCH was ultimately of the view that P still had mental capacity on 17 October 2020.</p> <p class="Judg-2"><a id="p1_15-p2_e"></a>(e)     Paragraph 4.2 of the Mental Capacity Act Code of Practice (“the Code”) provides that even if a person suffers from conditions such as dementia, mental health problems or intellectual disabilities, it must not be assumed that a person who suffers from any of these conditions necessarily lacks mental capacity.</p> <p class="Judg-2"><a id="p1_15-p2_f"></a>(f)     The Plaintiff’s sole allegation that appears to go the question of whether P lacked the functional component of capacity is the alleged inconsistency between the powers granted to the Defendants as donees under the LPA and the wishes that P had allegedly previously expressed to the Plaintiff regarding the residential property.</p> <p class="Judg-2"><a id="p1_15-p2_g"></a>(g)     Ms A has provided evidence that P had capacity at the time he executed the LPA. At the time Ms A took P’s instructions to prepare the LPA, P had been a client of Ms A for about 8 years. According to Ms A, based on her personal knowledge of P’s character, personality and demeanour arising from her many years of interacting with P, P was able to consider and make decisions for himself. Ms A had observed that during meeting with P on 28 October 2020 –</p> <p class="Judg-3"><a id="p1_15-p2_g-p3_i"></a>(i)       P’s manner of speaking was clear and smooth, and his thought process was lucid and logical;</p> <p class="Judg-3"><a id="p1_15-p2_g-p3_ii"></a>(ii)       P chose a son and a daughter to show and achieve a check and balance between the children;</p> <p class="Judg-3"><a id="p1_15-p2_g-p3_iii"></a>(iii)       P was clear about his displeasure and disappointment with the Plaintiff;</p> <p class="Judg-3"><a id="p1_15-p2_g-p3_iv"></a>(iv)       P was able to instruct Ms A for his Donees and/or his replacement Donee to act jointly; and</p> <p class="Judg-3"><a id="p1_15-p2_g-p3_v"></a>(v)       P was his usual self in terms of his demeanour, manner of speaking and thought processes, and he was able to understand and fully understood her explanations, and to consider and make decisions independently.</p> <p class="Judg-2"><a id="p1_15-p2_h"></a>(h)     On the Plaintiff’s allegation that it is highly unlikely that P would have granted the Defendants power to sell and mortgage his properties including the residential property based on P’s wishes contained in an undated letter, the Defendant submits that the evidence given in the High Court suit was that the letter was written by P between 2003 and 2009, 11 to 17 years before P executed the LPA and long before P had become displeased and disappointed with P which would have prompted P to change his mind.</p> <p class="Judg-1"><a id="p1_16"></a>16     In order to warrant the revocation of a LPA on the ground of lack of mental capacity, it must be shown that the Donor lacks both the clinical component and functional component of such mental capacity, and that there is a nexus between the 2 components. It must be shown that P must be unable to make a decision, and the clinical aspect is that this inability must be caused by a mental impairment. There is no direct evidence that P had a mental impairment that caused him to be unable to make a decision regarding executing a LPA. Dr TCH was under the impression that P may have been suffering from mild cognitive impairment. The doctor nevertheless observed that P was able to clearly express his concern for the deterioration of his memory function and requested for tests to check if he has dementia and he able to understand and express his agreement for further specialist assessment and medical care. Dr TCH was ultimately of the view that P still has mental capacity on 17 October 2020. The Plaintiff is making arguments from Dr CMS’s diagnosis, other opinions of other doctors and the prescription of Donepezil to argue that the clinical component has been satisfied. I accept that P had some form of cognitive impairment at the LPA was made and that the clinical component is satisfied. This is clear from Dr TCH’s clinical notes and medical report. The question is whether the cognitive impairment caused P to be unable to make a decision regarding the execution of his LPA (the functional component).</p> <p class="Judg-1"><a id="p1_17"></a>17     The Courts have accepted that even persons with dementia can have capacities to execute LPAs (see for example <em>ULP and others v ULS</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/25519-SSP.xml')">[2021] SGHCF 1</a>). It is clear from Paragraph 4.2 of the Code that conditions such as dementia may cause a lack of mental capacity, but it must not be assumed that a person who suffers from such a condition necessarily lacks mental capacity. Lack of mental capacity must be proved (see <em>ULP</em> at [19]). When making a LPA, a donor needs to have capacity to understand that he needed someone to look after him and that an LPA would achieve this purpose (see <em>ULP</em> at [32]). When making a LPA, a donor is deciding who should make decisions on his behalf in terms of his personal welfare and his property and affairs if he lacked capacity and the powers to be given to his donees. A donor needs to understand the consequences of appointing the donees and the granting of the powers to the donees.</p> <p class="Judg-1"><a id="p1_18"></a>18     Having memory issues and cognitive impairment (whether the cognitive impairment is mild or significant) does not necessarily mean that P lacked mental capacity to decide on who should make decisions on his behalf if he should lack mental capacity. There must be a causal connection between the inability to make decision in question and the mental impairment, in that P must be unable to make a decision because of his mental impairment.</p> <p class="Judg-1"><a id="p1_19"></a>19     On the evidence before me, I find that P had mental capacity on 28 October 2020 to execute the LPA. Dr Tong examined P on 17 October 2020 and stated that possible cognitive impairment was considered. An advice to refer P to a psycho-geriatrician for further specialist assessment and management was made to P and his daughter. Dr Tong’s opinion is that the changes are not severe enough to interfere with daily life and activities. When P consulted Dr Tong on 17 October 2020, he was noted to be conscious, orientated and rational. He was able to express clearly the reason for his visit. He was concerned about his increasing forgetfulness and expressed his wish for further assessment and medical care. P was able to understand the questions from the screening questionnaire and answered them accordingly.</p> <p class="Judg-1"><a id="p1_20"></a>20     There is no contradictory evidence to show that P was disoriented or irrational on the day he executed his LPA. Although detailed attendance notes are lacking, there is no other evidence that the certificate issuer Ms A’s evidence is unreliable in relation to P’s preferences in terms of who he would like to be his donees and the checks and balances to be put in place for his donees to make a decision. Ms A was not a certificate issuer who only saw P on one occasion. P has been Ms A’s client since 2012. She has interacted with P since 2012 and I accept her evidence about what P told her about his preferences and his views of the Plaintiff. While P did express his wishes about the residential property in his letters to the Plaintiff, it does not mean that he did not understand the consequences of signing the LPA in the way he did. He had chosen for his donees to act jointly to achieve a check and balance (paragraph 18 of Ms A’s affidavit). It is not necessary to insist that the court be the check and balance if a donor of a LPA has made other arrangements for checks and balances.</p> <p class="Judg-1"><a id="p1_21"></a>21     The explanation in Paragraph 17 of Ms A’s affidavit on P’s views of the Plaintiff fits into the circumstances at that time and there is evidence that there were issues in relation to the mortgage of the commercial properties which P had to take steps to address personally although the commercial properties were being managed by the Plaintiff. This is not to say that the Plaintiff bears sole responsibility for the mortgage issues relating to the commercial property but it may have affected P’s choice of donees when he was executing his LPA.</p> <p class="Judg-1"><a id="p1_22"></a>22     From the evidence, I was satisfied that P was able to understand the information required to make a LPA in that he was able understand that he needed someone to make decisions for him if he lacked capacity and that a LPA could achieve this, he could decide who he wanted to make decisions on his behalf if he lacked capacity, he was able to retain that information, he was able to use or weigh that information as part of the process of making the decision and he was to communicate his decision.</p> <p class="Judg-1"><a id="p1_23"></a>23     The Plaintiff’s case appears to be based on the premise that a LPA where he is not a donee was not conceivable since he is the one P trusted to hold the family and assets together. From the evidence, the Plaintiff is not the only one whom P trusted to handle his personal welfare and property and affairs. P’s medical appointments appear to be handled by P’s late daughter, not the Plaintiff. It was the late daughter who accompanied P to the relevant medical appointments. The 2<sup>nd</sup> Defendant, not the Plaintiff, was the one tasked by P to administer P’s late wife’s estate. P made the Plaintiff and 1<sup>st</sup> Defendant joint tenants with him for the commercial properties. The Plaintiff and 1<sup>st</sup> Defendant are directors of the holding company for P’s businesses. P had entrusted different aspects of his personal welfare and his property and affairs to different children when there were no issues as to his capacity. The mere fact that the Plaintiff was excluded as a donee of the LPA is not an indication that P had no capacity to decide who he wanted to make decisions on his behalf when he lacked capacity.</p> <p class="Judg-Heading-1">Issue 2: Have the Defendants, as donees appointed by P under the LPA, not been acting in P’s best interest</p> <p class="Judg-1"><a id="p1_24"></a>24     Section 6 of the MCA provides that in determining what is in a person’s best interests, the person making the determination must consider “all relevant circumstances” and take the steps set out at Sections 6. In <em>TEB v TEC</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/17585-SSP.xml')">[2015] SGFC 54</a> at [276], the court stated that in determining whether or not a person’s conduct is not in the best interest of P, it is important to understand why the person acted the way he did. If he acted in good faith and for good reasons, it might well be that, even though the act in question turned out, with the benefit of hindsight, to be wrong, the person in question would nevertheless not be found to have acted in a way that was not in P’s best interests.</p> <p class="Judg-1"><a id="p1_25"></a>25     The Plaintiff argues that the Defendants have engaged in conduct that is not in P’s best interest –</p> <p class="Judg-2"><a id="p1_25-p2_a"></a>(a)     First, the Defendants were clearly acting in bad faith when they hid the existence and activation of P’s LPA from the Plaintiff. As the Plaintiff and his family live with P, the Defendants should have informed the Plaintiff and his family of the existence of P’s LPA when it was executed on 28 October 2020 and certainly by the time it was activated on 26 January 2021.</p> <p class="Judg-2"><a id="p1_25-p2_b"></a>(b)     The Defendants failed to notify the relevant parties such as the company and the banks of the activation of P’s LPA. P signed a directors’ resolution in respect of the company on 21 January 2021. P continued to sign off on cheques for RM 240.40 and S$250 in both his personal capacity as well as on behalf of the company in February and March 2021, which was after the activation of his LPA. Although the Defendants had claimed that it was P who had insisted on signing the cheques, and they had assessed that it was in his best interests for him to do so, the Plaintiff argues that the Defendants should not have allowed P to make such decisions over his property and affairs. Had either of the cheques bounced, P could have been exposed to civil liability.</p> <p class="Judg-2"><a id="p1_25-p2_c"></a>(c)     The Defendants had cut off the Plaintiff’s access to P and prevented the Plaintiff’s immediate family from speaking to P.</p> <p class="Judg-2"><a id="p1_25-p2_d"></a>(d)     The Defendants had removed P from his residential property.</p> <p class="Judg-1"><a id="p1_26"></a>26     The Defendants have explained their conduct as follows –</p> <p class="Judg-2"><a id="p1_26-p2_a"></a>(a)     The Defendants did not disclose the LPA in keeping with their duty of confidentiality under Paragraph 8.5.9 of the Code.</p> <p class="Judg-2"><a id="p1_26-p2_b"></a>(b)     The Directors’ resolution was signed before the LPA was activated. As for the cheques, the 2<sup>nd</sup> Defendant and the late daughter had encouraged P to participate in the process and considered P’s wishes and feelings at that time. They allowed P to sign the cheques as P and the company would have been affected if payment was not made and the amounts were insubstantial.</p> <p class="Judg-2"><a id="p1_26-p2_c"></a>(c)     The Defendants have not prevented P from interacting with the Plaintiff and his family members. They just want to ensure that at least one of them is present because of the hazards posed by the Plaintiff’s junk which have been left in a haphazard manner in the common areas of the residential property.</p> <p class="Judg-2"><a id="p1_26-p2_d"></a>(d)     On the removal of P from the residential property, the Defendants have given evidence that P had stayed with the late daughter in that instance because it was more sleep conducive environment and P had agreed to do so.</p> <p class="Judg-1"><a id="p1_27"></a>27     I find that the non-disclosure to other family members that P had signed a LPA or that a LPA has been activated is not evidence that the donees have failed to act in P’s best interests. I accept the Defendants’ explanation why they did not disclose the existence of the LPA to the Plaintiff. A donor may sometimes take into consideration family dynamics when deciding whether or not to disclose the existence of a LPA. In some families, the disclosure of the existence of a LPA may lead to conflict and a donor may decide to only inform some and not all of his family members about the LPA to maintain some form of short term peace within the family. Before a LPA is activated, it would be for the donor and not the donees to decide whether to disclose the existence of the LPA to other family members as the donees cannot act in their capacities as donees until the LPA is activated. Mere non-disclosure of a LPA by the donees especially during the time before P is found to lack capacity is not evidence that the donees have failed to act in P’s best interests.</p> <p class="Judg-1"><a id="p1_28"></a>28     I find that allowing P to sign cheques for small amounts for payments which were due when the donees have ascertained that P understood what the cheques were for is not a sign that the donees were not acting in P’s best interests. In relation to both cheques, I accept that P had insisted on signing on the cheques. The fact that the 2<sup>nd</sup> Defendant and the late daughter had allowed P to sign the 2 cheques for insubstantial amounts after considering P’s wishes and feelings at that time is not evidence that the donees had failed to act in P’s best interest. In <em>BUV v BUU and another and another matter</em> <a class="pagecontent" href="javascript:viewPageContent('/Judgment/23303-SSP.xml')">[2019] SGHCF 15</a>, it was held by Aedit Abdullah J at [110] that –</p> <p class="Judg-Quote-1">Section 3(3) states that a person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been unsuccessful. I read this stipulation as geared towards facilitative assistance, ie, that which enables a person to make a decision. This could entail the use of simplifying language, memory aides, and the like: see also s 5(2) of the MCA. In other words, the assistance conceived of in ss3(3) and 5(2) of the MCA is aimed at helping a person retain her existing decision-making ability.</p> <p class="Judg-1"><a id="p1_29"></a>29     It is questionable whether P had ability at the time the cheques were signed to make decisions in relation to payment of debts given the activation of the LPA. However, if the donees acted in good faith and for good reasons, even though the act in question turned out, with the benefit of hindsight, to be wrong, the donees would nevertheless not be found to have acted in a way that was not in P’s best interests. The Defendants may not have fully understood or appreciated the legal implications of allowing P to sign cheques for insubstantial amounts, but so long as they acted in good faith and for good reasons, they cannot be said to have acted in a way that was not in P’s best interests.</p> <p class="Judg-1"><a id="p1_30"></a>30     I accept the Defendants’ explanations on wanting to be present when the Plaintiff speaks to P and why P went to stay with the late daughter. The fact that the Plaintiff and Defendants have issues communicating with each other is not evidence that the Defendants have not acted in P’s best interests. What the Plaintiff perceives as the cutting off of access to P by the Defendants is seen by the Defendants as taking steps to ensure P’s safety. The Plaintiff and the Defendants may benefit from seeking professional assistance to help them better communicate with each other in terms of P’s care but the evidence presented by the Plaintiff does not show that the Defendants have acted in bad faith and without good reason.</p> <p class="Judg-Heading-1">Conclusion</p> <p class="Judg-1"><a id="p1_31"></a>31     In the circumstances, I dismissed the Plaintiff’s application for the Court to revoke the appointment of the Defendants as donees of P under Lasting Power of Attorney registered on 3 December 2020. I also ordered the Plaintiff to pay the 1<sup>st</sup> and 2<sup>nd</sup> Defendants costs of the application fixed at $12,000 plus disbursements to be agreed or fixed by the court.</p> </div></content></root> 9908ad9d768b0ae11632d9215a38454bdb69968b

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