1. Background

This case concerned an application made pursuant to the Mental Capacity Act (“MCA”) for a declaration that the person in question, BKR, was unable to make decisions as to her property and affairs because of an impairment of her mind, and for a consequential order that deputies be appointed to make all decisions, relating to her property and affairs, on her behalf.

The application was made by BKR’s sisters (the “appellants”), and was opposed by BKR herself as well as BKR’s youngest daughter and son-in-law (BKR’s youngest daughter and son-in-law together being the “respondents”).

The critical events leading to the application occurred from late October 2010 onwards, and consisted of BKR doing the following: (a) setting up a trust on terms and in circumstances that might be said to be questionable, (b) giving a succession of contradictory instructions to her bankers in relation to the transfer of her assets held in accounts with UBS and JP Morgan to her DBS account, and (c) living with the respondents in Hong Kong and cutting off contact with her other children and siblings despite their efforts to gain access to her.

This questionable pattern of behavior led to the appellants’ concerns that BKR might lack decision-making capacity and/or be acting under the influence of the respondents; which in turn led them to make the application in question.

2. The Decision & Points of Note

In coming to its decision that BKR did in fact lack the mental capacity to make decisions as to her property and affairs, Singapore’s apex court made the following points of note:-

  1. the test for capacity under section 4 of the MCA comprises a clinical and a functional component, and the functional component is a question for the courts to decide, with limited scope for the involvement of medical experts;
  2. a court will need to take into account a person’s actual circumstances when assessing such a person’s mental capacity; and
  3. the usual adversarial mode of litigation might not be best suited to deal with similar matters concerning the MCA, and a more inquisitorial model should be employed.

3. The Test for Capacity under section 4 of the MCA

A key question that the Court of Appeal (“CA”) had to answer was whether in assessing a person’s mental capacity, the court is to have regard to the actual circumstances that the person is in, or does it adopt a more theoretical analysis that overlooks those circumstances. In BKR’s case, this begged the more specific question whether the court ought, where there was interaction between mental impairment and undue influence (as the evidence had shown), to take into account BKR’s actual circumstances.

After much consideration, the CA concluded that a person’s actual circumstances had to be taken into consideration in assessing that person’s mental capacity. If a person were assessed to be mentally incapable because of a combination of mental impairment and the circumstances he finds himself in, it is of no consequence to argue that such person’s mental impairment will not necessarily rob him of his decision-making ability in different circumstances that he cannot realistically expect to be in.

In BKR’s situation, it was found that the undue influence exerted by the respondents on her could not be divorced from her mental impairment, and it was the combination of these factors which deprived her of the ability to make her own decisions in relation to her property and affairs.

4. Future Change to the Law

After delivering its decision, the CA went on to express its dissatisfaction with the current procedure and practice which apply to proceedings under the MCA. In such proceedings, the interests of the person being assessed are paramount, and the CA was of the view that the court’s role in such a process is a protective one and it should not shy away from taking control of proceedings and directing parties on the evidence that it would require in order to reach a decision.

It went on to further opine on what it felt should be the proper procedure in proceedings involving a challenge of someone’s mental capacity under the MCA. And this, coupled with a more inquisitorial and court-directed approach to the evidence, will consequently be recommended by the CA to the Rules Committee of the Law Society, for the future handling of matters concerning the MCA.