The Silent Struggle: Importance of one’s Mental Capacity


Mental capacity is a fundamental aspect of our cognitive abilities, enabling us to make decisions, process information, and understand the world around us. However, in some cases, individuals may experience a gradual or sudden decline in mental capacity, leading to significant challenges in their daily lives.

Loss of mental capacity can occur due to various factors, including aging, neurodegenerative diseases like Alzheimer's and dementia, brain injuries, stroke, mental health disorders, or intellectual disabilities. The decline in mental capacity can manifest differently in individuals, affecting their ability to communicate, manage daily tasks, and maintain relationships.

As such, it is becoming more and more important to make a Lasting Power of Attorney so that you can be prepared for the unexpected.

What is a LPA?

A Lasting Power of Attorney (“LPA”) is a legal document that allows an individual who is at least 21 years of age (referred to as the "donor") to appoint a trusted person or persons (referred to as the "donee" or "donees") to make decisions on their behalf in case they lose mental capacity or become unable to make decisions for themselves.

A LPA is commonly used in situations where an individual wants to ensure that their affairs are managed and decisions are made in their best interests if they are no longer able to do so. This could occur due to aging, illness, injury, or any other circumstances that result in a loss of mental capacity.

There are two (2) types of LPAs:

  1. Property and Financial Affairs LPA: This type of LPA grants the donee(s) the authority to manage the donor's financial and property matters. This can include tasks such as paying bills, managing investments, buying or selling property, and making decisions about the donor's finances.
  2. Personal Welfare LPA: This type of LPA authorizes the donee(s) to make decisions about the donor's healthcare, medical treatment, living arrangements, and general welfare. This can include decisions about medical care, residential care, and even decisions about life-sustaining treatment, if specified by the donor.

What is loss of mental capacity?

The Singapore Government introduced the Mental Capacity Act to address the increase in mental illnesses as the population ages. The Mental Capacity Act came into effect in 2010.

Section 4(1) of the Mental Capacity Act set out the requirements for assessing whether someone lacks capacity.

“A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of the mind or brain”.

There is a two-stage test in assessing mental capacity:

Stage 1: Is the person suffering from an impairment of, or disturbance in the functioning of, the mind or brain?
Stage 2: If so, does the impairment or disturbance cause the person to be unable to make a decision when he needs to?

Section 5 of the Mental Capacity Act elaborates on what it means when an individual is “unable to make a decision” and tells us that capacity is both “time-specific”, focusing on the particular time when a decision has to be made – so the loss of capacity can be temporary, partial, or fluctuating; and “decision-specific”, concentrating on the particular matter to which the decision relates, rather than the ability to make decisions generally.

So, someone may lack capacity in relation to one particular matter, but not necessarily another.

What amounts to loss of capacity?

In the Singapore High Court (Family Division) case of BUV v BUU, an elderly lady, UWP, was 89 years old at the time legal proceedings were commenced. She was suffering from dementia, had no formal education and was illiterate. However, she was able to understand and speak in the Teochew dialect.

UWP favoured her second son at the expense of the third son. In 2016, she had executed an LPA authorising her second son as her donee to make decisions in relation to her personal welfare, property and financial matters. In the same year, UWP executed a will with the second son as a beneficiary but left nothing to the third son.

Over the course of the legal proceedings, it was clear from the elderly lady’s performance under cross-examination on the witness stand that she was not able to follow the proceedings, understand what was asked of her and absorb the information provided to her. The elderly lady was also unable to recall the nature and contents of the legal documents she apparently executed, and could not recall information about her bank accounts and family.

This raised serious doubts about the elderly lady’s ability to retain information relevant to decisions relating to her property and affairs, and particularly in respect of her funds. The medical evidence showed that she was, at the very least, impaired in her judgment and mental abilities.

As such, the Singapore High Court found that the elderly lady lacked mental capacity at the time she executed her LPA and Will. The LPA and Will executed in 2016 was thus set aside / invalidated by the Singapore High Court.


As you are only able to make a LPA when you have mental capacity, do not wait until it is too late before deciding to execute an LPA.

Having an LPA in place provides peace of mind to the donor, knowing that trusted individuals are appointed to make decisions on their behalf if and when they are no longer able to do so themselves. It also helps to ensure that the donor's wishes and best interests are respected, reducing potential conflicts and ensuring a smooth management of their affairs during challenging times.

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