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Applications for the appointments of deputies (Mental Capacity Act 2008)
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| Applications for the appointments of deputies (Mental Capacity Act 2008) |
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This fact sheet provides basic information for people who intend to file an application to the Court for the appointment of a Deputy under section 20 of the Mental Capacity Act 2008 and for people who are responding to such an application. A detailed write-up on this and other general information on Family Court processes is available on the Family Court website.
WHAT IS A DEPUTY?
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”).
You can find this Act at the Singapore Statutes Online website.
DO I NEED PERMISSION FROM THE COURT BEFORE APPLYING?
Generally, if you are related to P by blood or marriage, you do not require the permission of the Court to make the application. However, you must state in your supporting affidavit that you do not require such permission and give reasons for your statement. You must also exhibit relevant documents such as any birth certificate or marriage certificate. In other cases, you may need 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.
HOW DO I APPLY FOR THE APPOINTMENT OF A DEPUTY?
You can apply by filing an Originating summons (Form 39A of Appendix B to the Subordinate Courts Practice Directions) supported by your affidavit (Form 39B of Appendix B to the Subordinate Courts Practice Directions), the deputy’s affidavit (if you are not also the deputy to be appointed) (Form 39C of Appendix B to the Subordinate Courts Practice Directions) and a doctor’s affidavit exhibiting the medical report on P’s lack of capacity. 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.
WHERE CAN I FIND THE FORMS FOR THE APPLICATION
The forms may be downloaded from the Family Court website. Hard copies are also available from the HELP centre at Level 3 of the Family & Juvenile Court Building 3 Havelock Square Singapore 059725.
WHY ARE SOME DOCUMENTS ENTITLED “IN THE HIGH COURT OF REPUBLIC OF SINGAPORE” WHILE OTHERS CARRY THE TITLE “IN THE SUBORDINATE COURTS OF THE REPUBLIC OF SINGAPORE”?
Under the MCA, the High Court is vested with the jurisdiction to hear and determine cases filed under the MCA. On 1 March 2010, this jurisdiction was transferred to the Family Court and a sub-registry of the High Court was set up on the premises of the Family Court. Hence, the originating summons (which starts the action) and all documents filed at the same time as the originating summons (e.g. the supporting affidavits) will bear the title “In the High Court of the Republic of Singapore”. All subsequent documents filed (e.g. the affidavit of service) will bear the title “In the Subordinate Courts of Singapore”. (Please see paragraph 116C of the Subordinate Courts Practice Directions.)
WHAT PRAYERS DO I HAVE TO PUT IN THE ORIGINATING SUMMONS?
Form 39A of Appendix B to the Subordinate Courts Practice Directions sets out sample prayers which you may wish the Court to consider and grant. You should choose the prayers which meet P’s needs and delete those which are inapplicable. In particular, you will have to state what sort of deputy powers you are seeking for yourself as deputy or for the deputy or deputies you are proposing to be appointed. You may also add in other prayers.
WHAT EVIDENCE DO I HAVE TO STATE IN MY AFFIDAVIT?
Your affidavit must take the format of Form 39B of Appendix B to the Subordinate Courts Practice Directions and contain certain information as laid down in paragraph 116K(2) of the Subordinate Courts Practice Directions, in particular, 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. However, the contents of the affidavit may be varied to suit P’s and your circumstances.
WHAT EVIDENCE DOES THE DEPUTY HAVE TO STATE IN HIS AFFIDAVIT?
The deputy’s affidavit must take the format of Form 39C of Appendix B to the Subordinate Courts Practice Directions and contain certain information as laid down in paragraph 116K(2) of the Subordinate Courts Practice Directions. In particular, it must state the deputy’s personal particulars, personal and financial background and his statement that he understands his duties and responsibilities as a deputy. However, the contents of the affidavit may be varied to suit P’s and the deputy’s circumstances.
WHAT EVIDENCE MUST THE DOCTOR’S AFFIDAVIT CONTAIN?
The doctor’s affidavit must contain his medical report which the Court will rely on 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, the doctor must distinguish clearly between observations or conclusions based on information given to him and those based on his examination of P. The medical report must also contain a clear opinion as to whether P lacks capacity in relation to the matters specified in the application; and be made not more than 6 months before the date of your application to the Court.
DO I HAVE TO SERVE THE APPLICATION ON ANYONE?
Yes, you would have to serve the application on the Defendant and relevant persons. You need not serve on the relevant persons if you have obtained their written consents for the dispensation of service of documents on them.
WHO IS A DEFENDANT?
The 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.
WHO IS A “RELEVANT PERSON”?
A “relevant person” has been defined in paragraph 116G of the Subordinate Courts Practice Directions as a person likely to have an interest in being notified that an application has been made to the Court concerning P. This may be P’s immediate family members or friends who have a close relationship with P. This group also includes a person with a legal duty to support P, a person who will benefit from P’s estate or any person or public institution who is responsible for P’s care.
HOW DO I SERVE THE DOCUMENTS?
You are required to serve the papers on the defendant by way of personal service. This means that you have to give him the documents personally and not post the documents to him. If you are unable to serve on the defendant personally, you can apply for substituted service by either posting on the door of his last known address or serve by advertisement.
You must also serve on the relevant persons unless you have obtained and filed their written consents for dispensation. Service on relevant persons is by way of ordinary service which means that you may post the documents to them. You have to attach the Notice to Relevant Persons in Form 39E of the Subordinate Courts Practice Directions to the documents to be served. This Notice contains instructions for the relevant persons on how to respond to your application.
WHEN DO I SERVE THE DOCUMENTS?
You must serve the documents within 21 days of filing of the Originating Summons. After serving the documents, you are required to file an affidavit of service which states the dates, times and how the document was served on the defendant and the relevant persons. You may file 1 affidavit of service for all the persons served. This affidavit must be filed within 8 days of service.
WHAT IS NOTIFICATION OF P?
Order 99 Rule 6 of the Rules of Court requires an applicant or plaintiff to personally notify P of the proceedings within 21 days of filing of the Originating Summons. The applicant or plaintiff must personally explain to P in a manner which P can understand who the parties are, the nature of the application being made and the effect of the Court order if the application is granted. A certificate of notification in Form 39F of the Subordinate Courts Practice Directions must be filed within 8 days of notification.
HOW DO I INFORM THE COURT IF I OBJECT TO THE APPLICATION?
If you are the defendant and intends to object to the application, you are to file your affidavit in reply within 21 days after being served with the originating summons and the supporting affidavit.
If you are a relevant party and you intend to contest the proceedings, 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.
WHAT SHOULD I DO IF I CONSENT TO THE APPLICATION?
If you are a relevant person, you should file your 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.
If you are the defendant, 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 date of the hearing 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.
WILL I HAVE TO ATTEND COURT FOR THE HEARING OF THE CASE?
If the application is a 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.
Even if the application is not contested, you would still be required to attend at the hearing of the case for the Court to obtain any clarifications from you or grant the application.
WHAT HAPPENS IF P SAYS HE DOES NOT LACK CAPACITY OR REGAINS CAPACITY BEFORE A DEPUTY HAS BEEN APPOINTED?
If you are the applicant or plaintiff, you should apply to the Court to withdraw your originating summons.
If you are P and the applicant or plaintiff intends to proceed with his application, you may 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.
WHAT HAPPENS IF P REGAINS CAPACITY AFTER A DEPUTY HAS BEEN APPOINTED?
If you are P, you should apply to the Court to revoke the order appointing a deputy for you. Your application must be supported by an affidavit setting out the grounds and evidence for revoking the Court order e.g. a medical report which shows that you had regained capacity. The application must be served on the deputy, the Public Guardian, and on any named defendants.
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