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MAKING AN APPLICATION TO THE MENTAL CAPACITY COURT FOR THE APPOINTMENT OF DEPUTY |
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(INFORMATION FOR THE PLAINTIFF OR APPLICANT) |
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1)
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What is a deputy?
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A Deputy is a person appointed by the Court, who is given the authority to make decisions on behalf of a person who lacks capacity (“P”) in relation to his personal welfare and/or property and affairs. This appointment is made under section 20(2) of the Mental Capacity Act (“MCA”).
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2)
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Do I need permission to apply to Court?
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Generally, if you are related to P (the person whom you say lacks capacity and for whom you are applying for the appointment of a deputy or deputies) by blood or marriage, then you do not require the permission of the Court to make the application.
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However, you must state at the start of your supporting affidavit (sworn statement for use in Court proceedings) that you do not require permission of Court to make the application and give reasons for your statement. You must also exhibit relevant documents such as any birth certificates or marriage certificates.
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If you are not related to P, you may require the permission of the Court to make the application. You may refer to paragraph 116D of the Subordinate Courts Practice Directions for the list of persons who do not require permission. If you do require permission, you may ask the Court for permission in the same application you are asking for the appointment of a deputy or deputies. The Court will consider your application for permission first before considering your main application.
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You must give good reasons why the Court should grant you permission to make the application. The Court will consider the following in deciding whether to grant your application for permission:-
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your connection to P;
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the reasons for your main application;
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the benefit to P of any orders or directions that you are seeking; and
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whether the benefit can be achieved any other way.
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3)
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What kind of Court documents should I file?
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For the application for the appointment of a deputy or deputies, there are prescribed forms for the originating summons and the supporting affidavit which you must follow. The prescribed forms are Form 39A and Form 39B of Appendix B to the Practice Directions. |
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You will need to file the following documents:-
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the originating summons;
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your supporting affidavit to the originating summons;
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a doctor’s affidavit exhibiting the medical report on P’s lack of capacity;
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the affidavit(s) of the deputy or deputies (if you are not applying for yourself to be appointed as the deputy)
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The originating summons ( Form 39A of Appendix B to the Practice Directions)
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In the originating summons which you file, you will need to state clearly:-
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that you are asking for permission of the Court to make the application (if you require permission to do so).
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whether you are asking for a declaration from the Court which concerns P’s personal welfare or P’s property and affairs or both.
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whether the deputies are to act jointly or jointly and severally if there are more than one deputy. Please note that to ‘act jointly’ means that the deputies have to act together while to ‘act jointly and severally’ means that one deputy can act independently of the other deputies.
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if you intend that there should be one or more successor deputies, then the names of the successor deputy or deputies must be stated in the originating summons. A successor deputy is someone whom you intend will replace the deputy whom you are seeking to be appointed for P in the future.
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what sort of deputy powers that are sought by you for yourself as deputy or for the deputy or deputies you are proposing to be appointed; and
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any other specific orders or reliefs that you may require in your particular case.
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Your supporting affidavit ( Form 39B of Appendix B to the Practice Directions)
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In the supporting affidavit that you file, you will need to state clearly:-
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if you do not require permission of the Court to make the application that this is so and exhibit the relevant documents such as any birth certificates or marriage certificates.
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if you require permission of the Court to make the application, the grounds upon which you are relying to obtain permission.
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the names of all relevant persons (please see the section on “What do I do next after filing the originating summons?” for a definition of relevant persons), their relationships to P, dates of birth and contact details.
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personal information about P, his living and care arrangements, details of his alleged incapacity, the monthly current and future expenses of caring for P, a list of P’s assets and why it is necessary for a deputy to be appointed for P.
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information about the deputy or deputies such as his or their relationship(s) with P, any personal or financial circumstances which will assist the Court in assessing the suitability to act as deputy or deputies for P.
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If your application or any part of it is for the appointment of a deputy for the property and affairs of P, then your supporting affidavit must include the following addition information:-
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whether P has executed any will or codicil (if so, to exhibit a copy);
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a schedule of all of P’s assets and properties, with up to date valuations;
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the total value of P’s assets and properties;
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sources and quantum of P’s monthly/annual income;
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current and projected expenses of caring for and maintaining P, with supporting evidence;
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whether P has received or is going to receive any form of compensation or an award of damages (if so, to provide details); and
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whether P has any outstanding debts (if so, to provide details).
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an up to date report of P’s present medical condition, life expectancy, likelihood of requiring increased expenses in the foreseeable future.
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Please note that the Court may require any other information from you and direct that you file a supplementary affidavit.
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IMPORTANT NOTE
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If the relevant persons whom you must serve are not objecting to your application, you may wish to obtain their consents in the prescribed form (Form 39D of Appendix B to the Practice Directions) indicating their consents to your application and to the dispensation of service even before the filing of your application. The consents in the prescribed form must then be exhibited in your supporting affidavit.
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A doctor’s affidavit exhibiting the medical report
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It is important for you to file a doctor’s affidavit with an attached medical report together with the originating summons and your supporting affidavit. The doctor’s affidavit and the medical report would be relied upon by the Court to determine whether P lacks capacity in relation to the matters specified in the application. In order for the medical report to be useful to the Court, it shall:-
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distinguish clearly between observations or conclusions based on information given to the doctor and those that are based on the doctor’s examination of P;
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contain a clear opinion as to whether P lacks capacity in relation to the matters specified in your application; and
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be current and not more than 6 months before the date of your application to the Court.
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Please note that the Court may direct for P to be examined by a Special Visitor from the Board of Visitors and for a report to be furnished to assist in its determination of P’s capacity or lack thereof.
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The affidavit(s) by the deputy or deputies ( Form39C of Appendix B to the Practice Directions)
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If you are applying for yourself to be the deputy, then your undertaking can be included in your supporting affidavit. However, if you are applying for another person to be appointed as the deputy, then his affidavit must be separately filed in Court. It must take the prescribed form in Form 39C of Appendix B to the Practice Directions.
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The documents are to be filed using the electronic filing service located at the Lawnet and Crimsonlogic Service Bureau at 133 New Bridge Road, Chinatown Point #19-01/02, Singapore 059413 or at the Lawnet Service Bureau at 1, Supreme Court Lane, Level 1, Supreme Court Building Singapore 178879.
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4)
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What do I do next after filing the originating summons?
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Under the Rules of Court, you will need to tell certain people about your application within 21 days of the filing of the originating summons.
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You must within 21 days of your filing the originating summons:-
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(a)
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serve a copy of your originating summons together with all the documents in support which you have filed on anyone you have named as a defendant in your application. A defendant is the person who has been named in the title of the originating summons and may be any person who has an interest in defending the case. This is to be by way of personal service which means that the documents must be handed over personally to the named defendants. If personal service is not possible, you may wish to apply for substituted service of the documents by either posting on the door of the last known address of the person to be served or by advertisement. |
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(b)
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serve a copy of your originating summons together with all the documents in support which you have filed on the relevant persons listed in your supporting affidavit. |
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Who are relevant persons?
Relevant persons are those who are likely to have an interest in your application, for example a spouse, parents, or children of P. Please see paragraph 116G of the Subordinate Courts Practice Directions. For the purposes of service, they will therefore include the following immediate family members:- |
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(i)
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P’s spouse;
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(ii)
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P’s children (aged 21 and above);
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(iii)
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P’s parents or guardians;
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(iv)
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P’s brother or sister (aged 21 and above); and
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(v)
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P’s grandparents or grandchildren (aged 21 and above). |
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You would have to serve the application and the supporting documents on relevant persons in descending order according to the list above (which is ordered according to the presumed closeness in terms of relationship to P). For example, if P is married, has children aged 21 and above and siblings but no surviving parents, then you must serve on P’s spouse, P’s children (aged 21 and above) and P’s brother or sister (aged 21 and above). |
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You would have to serve the application and the supporting documents on relevant persons in descending order according to the list above (which is ordered according to the presumed closeness in terms of relationship to P). For example, if P is married, has children aged 21 and above and siblings but no surviving parents, then you must serve on P’s spouse, P’s children (aged 21 and above) and P’s brother or sister (aged 21 and above). |
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If P has four siblings, all four siblings must be served unless there is good reason not to do so. For example, it may be a good reason not to serve on every person in the category if one or more of them has had little or no involvement in P’s life and has shown no inclination to do so. |
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Since you should have served on P’s parents or guardians instead of his siblings according to the list above, you must also state why P’s parents are not to be served in your supporting affidavit. In this case, it would be because P has no surviving parents. |
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Apart from immediate family members, there could be other relevant persons who should be served a copy of the application with the supporting documents. They are :- |
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(i)
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any other relatives or friends who have a close relationship with P;
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(ii)
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any person who has a legal duty to support P;
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(iii)
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any person who will benefit from P’s estate; and
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(iv)
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any person who is responsible for P’s care (this includes any organisation which provides residential accommodation to P).
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If there are no such other relevant person to the best of your knowledge, then you are to state this in your supporting affidavit. |
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How do I serve on relevant persons? |
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Service on relevant persons can be by way of ordinary service which means you can:- |
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leave the documents at the proper addresses of the persons to be served,
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post the documents to them;
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fax the documents to them;
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serve in a manner agreed between you and them;
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serve in any other manner directed by the Court. |
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What else do I need to serve on relevant persons? |
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You would also need to attach the Notice to Relevant Person (Form 39E of Appendix B to the Practice Directions) to the documents to be served on relevant person. The Notice contains instructions for the relevant persons on how to respond to your application. |
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(c)
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notify P of the application. You must provide information in a way that is appropriate to P’s circumstances, for example by using simple language, visual aids, or any other means. You must explain to P:- |
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that you are making an application to the Court;
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that your application raises the question of whether P lacks capacity and what that means;
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what effect the outcome of the application would have;
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details of any person who would be appointed to make decisions on their behalf; and
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that they may seek advice and assistance in relation to the application. |
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You may apply to Court to dispense with notification of P in appropriate circumstances, for example if P is in a permanent vegetative state or minimally conscious state. |
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5)
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What do I do after service or notification?
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After you have served your application, you must then file an affidavit of service stating that you have done so within eight days of the service for each person you have served. As long as the timeline of eight days is not breached, you may file one affidavit of service in respect of all the persons you have served. The dates, times and manner of service for each of the person you have served must be stated clearly in the affidavit of service.
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You must also file a Certificate of Notification (Form 39F of Appendix B to the Practice Directions) stating that you have notified P within 8 days of doing so.
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You will have to wait for 21 days after service of your application on relevant persons for them to respond to your application. If they consent to your application, they may file their consents (Form 39D of Appendix B to the Practice Directions) in Court or they may hand over the signed written consents to you for you to file in Court. In either case, the consent must be filed within 21 days after the service of your application.
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6)
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What happens when there is an objection to my application?
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The people whom you have served (whether named defendants or relevant persons) may object to your application.
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If the named defendant(s) object to your application, he should file an affidavit in reply to your supporting affidavit within 21 days after he is served with your originating summons and your supporting affidavit. You may file an affidavit in reply to his affidavit. The matter will then be fixed for hearing before a Judge in chambers. In the interim, you may have to attend pre-trial conferences to take directions from the Judge.
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If the relevant person(s) object to your application, he or she will have to apply to be joined as a party to the proceedings. The Court will decide whether to join the relevant person as a party to the proceedings before making directions or deciding on your application.
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If the application is contested, you would be required to attend at the hearing of the case to present arguments to the Court. You may wish to engage one who can advise you on the legal aspects of your case and make submissions on your behalf.
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7)
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What if there is no objection to my application?
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Even if there is no objection to your application, you would still be required to attend at the hearing of the case for the Court to obtain any clarifications from you or to grant the application.
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RESPONDING TO THE APPLICATION FOR THE APPOINTMENT OF DEPUTY
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(INFORMATION FOR P, THE DEFENDANT AND THE RELEVANT PERSON)
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1)
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If I am the defendant and I wish to consent to the application, what shall I do?
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You may file your written consent in Court using Form 39D of Appendix B to the Subordinate Courts Practice Directions (with modifications) or hand it over to the plaintiff to file on your behalf. Alternatively, you may appear in Court on the appointed day and inform the Court of your consent to the proceedings. If the plaintiff is represented by a lawyer, you may wish to communicate your consent to his lawyer who may prepare a draft consent order for you to sign.
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2)
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If I am the defendant and I wish to object to the application or any part of it, what shall I do?
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You should file your affidavit in reply stating the reasons for your objection within 21 days after being served with the originating summons and the supporting affidavit. You would be required to attend at the hearing of the case to present arguments to the Court. You may wish to engage one who can advise you on the legal aspects of your case and make submissions on your behalf.
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3)
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If I am a relevant person and I wish to consent to the application, what shall I do?
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You should file a written consent in Court. The written consent must be in Form 39D of Appendix B to the Subordinate Courts Practice Directions and be attested by a solicitor, a Commissioner for Oaths, a notary public or any person for the time being authorized by law in the place where the document is executed to administer oaths. You may file the written consent yourself or hand it over to the applicant or plaintiff to file on your behalf.
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4)
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If I am a relevant person and I wish to object to the application or any part of it, what shall I do?
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You have to file an application to be added as a party within 21 days after the date of service. You should use Form 39G of Appendix B to the Subordinate Courts Practice Directions and file an affidavit stating your interest in the application and the grounds of your objection. The Court will decide whether to join you as a party to the proceedings before making directions or deciding on the application for the appointment of deputy.
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5)
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If I am P and do not lack capacity or has regained capacity, what shall I do?
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You should inform the applicant or plaintiff who may then apply to Court to withdraw the application.
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However, if the applicant or plaintiff intends to proceed with his application, you should apply to be added as a party to the proceedings by filing a summons in Form 39G of Appendix B to the Subordinate Courts Practice Directions. Your application must be supported by an affidavit setting out the grounds and evidence for wanting to be added as a party e.g. a medical report which shows that you had regained capacity. Alternatively, you may appear on the date of the hearing to inform the Court. The Court may require you to file an affidavit or give any further directions.
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