Your client changes his mind frequently and seems rather forgetful – is he fickle or does he lack capacity? Last month, astute STEP members prepared themselves for the challenges posed by the forthcoming silver tsunami facing Singapore by attending a half-day session on dealing with the vulnerable client co-ordinated and organised by Ms Cathryn Lau, Director, UBS AG and chaired by Mr Lionel Choi, Executive Director, LGT Bank (Singapore) Ltd.
Ms Janice Foo, Manager of the Office of the Public Guardian (OPG) which maintains the registers of Lasting Powers of Attorney (LPA), explained LPAs and their features and the role of the OPG. She highlighted that LPAs are appropriate not only for elderly, but are appropriate for everyone as debilitating accidents can cause anyone to lose mental capacity at any time. Donors may be individuals, company directors, executors of wills or trustees. Where the donee is the donor’s spouse, a divorce will result in the revocation of the donee’s powers under Form 1 (the standard form). Clear and specific drafting to the contrary in Form 2 would be required to avoid such revocation. With fees to register Form 1 waived until 31 Aug 2016, what better time to encourage clients to get their LPAs executed and registered.
Ms Sim Bock Eng, Head, Specialist and Private Client Disputes Practice and Partner of Private Wealth Practice at Wong Partnership LLP, presented the law in Singapore on mental capacity, namely the provisions of the Mental Capacity Act (MCA). She highlighted that S4(1) of the MCA required that for lack of capacity to be proven, there must be shown a causative nexus between a person’s mental impairment (the clinical component) and the inability to make a decision (the functional component). However, in cases where there is an interaction between mental impairment and allegations of undue influence in proceedings under the MCA in which a person’s mental capacity was in issue, the Singapore Court of Appeal recently held in Re BKR  4 SLR, that mental impairment need NOT be the SOLE cause of the inability to make decisions.
It was fascinating to understand the medical perspective to mental incapacity, and how it complements a legal reasoning of what the condition is. Dr Seng Kok Han, Consultant Psychiatrist at the Institute of Mental Health, explained that mental capacity exists on a spectrum and can fluctuate over time. For example, dementia patients were known to exhibit more confused behaviour at sunset, compared to other times of the day, in what is called the sun-downing syndrome. Awareness of this is crucial as a person’s lack of capacity can be time specific and decision specific.
Lastly, Mr Richard Norridge, Head of Asia Private Wealth Practice at Herbert Smith Freehills, together with Ms Sim, concluded the session by discussing several UK and Singapore case studies, which in general emphasise the importance of practitioners not turning a blind eye when dealing with a potentially vulnerable client.
The session was most interactive. We had a spontaneous group of participants and the speakers responded in like manner - at times, with humour in a lighthearted fashion. Kudos to all present, we have all benefited from the wonderful session.