Mental Capacity (Amendment) Bill

Bill No. 11/2021

Read the first time on 10 May 2021.
An Act to amend the Mental Capacity Act and to make a related amendment to the Electronic Transactions Act.
Be it enacted by the President with the advice and consent of the Parliament of Singapore, as follows:
Short title and commencement
1.  This Act is the Mental Capacity (Amendment) Act 2021 and comes into operation on a date that the Minister appoints by notification in the Gazette.
Amendment of section 2
2.  Section 2 of the Mental Capacity Act (called in this Act the principal Act) is amended —
(a)by deleting the definitions of “deputy” and “donee” in subsection (1) and substituting the following definitions:
“ “deputy” means a person appointed by the court under section 20(2)(b) to make decisions on behalf of another person (“P”) in relation to a matter or matters concerning all or any of the following in respect of which P lacks capacity:
(a)P’s personal welfare;
(b)P’s property and affairs;
“donee” means a person who is conferred authority by a donor (“P”) under a lasting power of attorney to make decisions about all or any of the following when P no longer has capacity to make such decisions:
(a)P’s personal welfare, or matters concerning P’s personal welfare that are specified in the lasting power of attorney;
(b)P’s property and affairs, or matters concerning P’s property and affairs that are specified in the lasting power of attorney;
“donor” means a person (“P”) who confers authority on a donee (or donees) under a lasting power of attorney to make decisions about all or any of the following when P no longer has capacity to make those decisions:
(a)P’s personal welfare, or matters concerning P’s personal welfare that are specified in the lasting power of attorney;
(b)P’s property and affairs, or matters concerning P’s property and affairs that are specified in the lasting power of attorney;
“electronic”, “electronic record”, “record”, “secure electronic signature”, “signed” and “signature” have the meanings given by section 2(1) of the Electronic Transactions Act;
“electronic instrument” means an electronic record that confers authority of the kind mentioned in section 11(1);
“electronic transaction system” means the electronic transaction system established by the Public Guardian under section 10B(1);”;
(b)by inserting, immediately after the definition of “life‑sustaining treatment” in subsection (1), the following definition:
“ “non-electronic lasting power of attorney” means a lasting power of attorney that is created using non‑electronic means;”;
(c)by inserting, immediately after the definition of “registered medical practitioner” in subsection (1), the following definition:
“ “Singapore public sector agency” has the meaning given by section 2(1) of the Public Sector (Governance) Act 2018;”; and
(d)by inserting, immediately after subsection (2), the following subsection:
“(3)  For the purposes of this Act, a reference to an instrument that confers authority of the kind mentioned in section 11(1) includes an electronic instrument made in accordance with section 11(2)(b)(ii).”.
New Part IIIA
3.  The principal Act is amended by inserting, immediately after section 10, the following Part:
“PART IIIA
ELECTRONIC TRANSACTION SYSTEM
Interpretation of this Part
10A.  In this Part, unless the context otherwise requires —
“document” includes a document in electronic form;
“malfunction”, in relation to the electronic transaction system, includes any defect or breakdown in that system or in any equipment, software or telecommunication networks used in or in connection with that system;
“transaction”, in relation to the Public Guardian, means —
(a)the filing or lodging of any document with the Public Guardian, or the submission, production, delivery, furnishing or sending of any document to the Public Guardian, under or for the purposes of this Act;
(b)the making of any application, submission or request to the Public Guardian under or for the purposes of this Act;
(c)the provision of any undertaking or declaration to the Public Guardian under or for the purposes of this Act; and
(d)the extraction, retrieval or accessing of any document, record or information maintained by the Public Guardian under or for the purposes of this Act.
Establishment of electronic transaction system
10B.—(1)  The Public Guardian may establish an electronic transaction system —
(a)to enable any donor to create an electronic instrument with a view to creating a lasting power of attorney;
(b)to enable any person to carry out any transaction with the Public Guardian;
(c)to enable a person to give a notice to another person under or for the purposes of this Act;
(d)to enable the Public Guardian to issue any approval, certification, notice or other document under or for the purposes of this Act;
(e)to enable the Public Guardian to attach a note to any lasting power of attorney;
(f)to enable the Public Guardian to provide to persons entitled copies or extracts of documents filed or lodged with, submitted to, or issued by, the Public Guardian;
(g)to enable the Public Guardian to provide a service for the supply to the public of non‑confidential information relating to transactions with the Public Guardian; and
(h)to enable the Public Guardian to carry out any of the Public Guardian’s functions, or to provide any other service falling within those functions.
(2)  The non‑confidential information that may be provided under the service mentioned in subsection (1)(g) —
(a)may include —
(i)information extracted from documents filed or lodged with, submitted to, or issued by, the Public Guardian; and
(ii)collations, summaries, reports or analyses of documents filed or lodged with, submitted to, or issued by, the Public Guardian; and
(b)may be derived from documents filed or lodged with, submitted to, or issued by, the Public Guardian other than through the electronic transaction system.
(3)  Where any transaction with the Public Guardian can be carried out using the electronic transaction system, the Public Guardian may refuse to process the transaction unless —
(a)the transaction is carried out in accordance with this Part, including the requirements for the use of the electronic transaction system specified in subsection (4);
(b)the transaction meets the requirements prescribed in this Act or specified by the Public Guardian (as the case may be) for that transaction; and
(c)the fee payable for the transaction has been paid.
(4)  Subject to this Part and any regulations made under section 46, the Public Guardian may, from time to time, determine the requirements for the use of the electronic transaction system, which may include —
(a)conditions of access to, and use of, the electronic transaction system;
(b)security and authentication requirements for access to, and use of, the electronic transaction system;
(c)retention and production of documents supporting or authenticating transactions; and
(d)modes of payment for transactions.
(5)  The Public Guardian must keep a record, in such form as the Public Guardian may determine, of —
(a)all transactions with the Public Guardian that are carried out using the electronic transaction system;
(b)all approvals, certifications, notices and other documents issued by the Public Guardian under or for the purposes of this Act through the electronic transaction system; and
(c)all notes attached by the Public Guardian to any lasting power of attorney using the electronic transaction system.
(6)  The Public Guardian must ensure that each of the following documents is kept in such form as the Public Guardian may determine, that ensures the integrity, and enables the retrieval, of the document:
(a)any lasting power of attorney that is created using the electronic transaction system;
(b)any electronic copy of a non‑electronic lasting power of attorney.
Requirement to use electronic transaction system
10C.—(1)  Except as provided in subsection (2), a person who wishes to carry out a transaction with the Public Guardian —
(a)must do so using the electronic transaction system if the transaction is an application for the registration of an instrument purporting to create a lasting power of attorney;
(b)must do so using the electronic transaction system if required by the Public Guardian; or
(c)may do so using the electronic transaction system if permitted by the Public Guardian.
(2)  If a transaction with the Public Guardian under or for the purposes of this Act cannot be carried out using the electronic transaction system —
(a)because the person mentioned in subsection (1) is unable to carry out the transaction using the electronic transaction system due to the person’s physical disability or other circumstance;
(b)because the electronic transaction system is unavailable; or
(c)for any other reason,
the transaction must be carried out in the form and manner determined by the Public Guardian.
Electronic transaction system malfunction, errors and omissions
10D.—(1)  Despite any other written law or rule of law, the Public Guardian may —
(a)correct any error or omission in any register kept by the Public Guardian under this Act;
(b)correct any error or omission in any document filed or lodged with, or submitted to, the Public Guardian; and
(c)supply entries or records omitted to be made in any register mentioned in paragraph (a),
if the error or omission has occurred or arisen as a result of any malfunction of the electronic transaction system.
(2)  The Public Guardian must maintain a record of every correction made under subsection (1).
(3)  When any error or omission has been corrected under subsection (1), the error or omission is deemed not to have occurred.
(4)  The Public Guardian, an Assistant Public Guardian, an authorised officer or any person acting under the direction of the Public Guardian or an Assistant Public Guardian is not liable for any loss or damage suffered by any person by reason of any error or omission, if —
(a)the error or omission had occurred or arisen as a result of any malfunction of the electronic transaction system; and
(b)the malfunction of the electronic transaction system had occurred despite the Public Guardian having acted in good faith and with reasonable care to prevent such a malfunction from occurring.”.
Amendment of section 11
4.  Section 11 of the principal Act is amended —
(a)by deleting paragraph (b) of subsection (2) and substituting the following paragraph:
“(b)an instrument conferring authority of the kind mentioned in subsection (1) —
(i)being one executed by P before the date of commencement of section 4 of the Mental Capacity (Amendment) Act 2021 — is made and registered in accordance with the First Schedule as in force immediately before that date; or
(ii)being one executed by P on or after the date of commencement of section 4 of the Mental Capacity (Amendment) Act 2021 —
(A)is made using the electronic transaction system in accordance with section 12A and the First Schedule, or (in a case under subsection (2A)) is made in accordance with the First Schedule; and
(B)is registered in accordance with the First Schedule; and”;
(b)by inserting, immediately after subsection (2), the following subsection:
“(2A)  The Public Guardian may allow an instrument conferring authority of the kind mentioned in subsection (1) to be made in accordance with the First Schedule, without using the electronic transaction system, in any one or more of the following circumstances:
(a)the donor is unable to make the instrument using the electronic transaction system due to the donor’s physical disability or other circumstance;
(b)the donee is unable to sign the instrument using the electronic transaction system due to the donee’s physical disability or other circumstance;
(c)the electronic transaction system is unavailable;
(d)any other prescribed circumstances.”; and
(c)by inserting, immediately after subsection (4), the following subsections:
“(5)  On or after the date of commencement of section 4 of the Mental Capacity (Amendment) Act 2021, the Public Guardian may return any non‑electronic lasting power of attorney that is kept by the Public Guardian (whether registered before, on or after that date) to its donor if —
(a)the Public Guardian has ensured that an electronic copy of the lasting power of attorney (including all the notes attached to it under this Act), that is free from any relevant error, is made, and kept in the electronic transaction system (called in this section the electronic copy);
(b)the return of the non‑electronic lasting power of attorney is accompanied by a notice to the effect that unless the Public Guardian is notified by the donor of any relevant error in the electronic copy within 90 days (or any longer prescribed period) after the date of the notice, the electronic copy will be treated as being free from any relevant error and as the lasting power of attorney; and
(c)a notice is sent to the donee of the lasting power of attorney (or if there is more than one donee, each of them) to the effect that where the donor lacks capacity to verify whether there is a relevant error in the electronic copy or to give a notice to the Public Guardian of any relevant error in the electronic copy, then the donee (or if there is more than one donee, any of them) may give a notice to the Public Guardian of any relevant error in the electronic copy within 90 days (or any longer prescribed period) after the date of the notice, and unless this is done the electronic copy will be treated as being free from any relevant error and as the lasting power of attorney.
(6)  The Public Guardian may also send —
(a)a notice mentioned in subsection (5)(b) to the donor of a non‑electronic lasting power of attorney that was registered before the date of commencement of section 4 of the Mental Capacity (Amendment) Act 2021; and
(b)a notice mentioned in subsection (5)(c) to the donee of such lasting power of attorney (or if there is more than one donee, each of them),
where —
(c)the Public Guardian has, before that date, returned the non‑electronic lasting power of attorney to its donor or donee (or if there is more than one donee, any of them); and
(d)the Public Guardian has before or after such return ensured that an electronic copy of the lasting power of attorney (including all the notes attached to it under this Act), that is free from any relevant error, was made and is kept in the electronic transaction system (also called in this section the electronic copy).
(7)  The donor of a non‑electronic lasting power of attorney who received a notice mentioned in subsection (5)(b) may within 90 days (or any longer prescribed period) after the date of the notice, give a notice to the Public Guardian of any relevant error in the electronic copy (called in this section a notice of error).
(8)  A donee of a non‑electronic lasting power of attorney who received a notice mentioned in subsection (5)(c) may, if the donor of the lasting power of attorney lacks capacity to verify whether there is a relevant error in the electronic copy or to give a notice to the Public Guardian of any relevant error in the electronic copy, within 90 days (or any longer prescribed period) after the date of the notice, give a notice to the Public Guardian of any relevant error in the electronic copy (also called in this section a notice of error).
(9)  A notice of error under subsection (8) must be accompanied by a certificate from a registered medical practitioner verifying the lack of capacity of the donor to carry out any act described in that subsection, or to undertake tasks of a similar nature.
(10)  On receipt of a notice of error under subsection (7) or (8), the Public Guardian may, if satisfied that there is a relevant error in the electronic copy, rectify the relevant error.
(11)  The Public Guardian must give a written notice of the Public Guardian’s decision whether or not to rectify the relevant error to the donor and to the donee or (if there is more than one donee) every donee.
(12)  Subject to sections 15A and 16A, the electronic copy of a non‑electronic lasting power of attorney is treated as being free from any relevant error and as the lasting power of attorney —
(a)if no notice of error is received by the Public Guardian by the last day of the period mentioned in subsection (5)(b) or (c), whichever is the later — on the next day (called in this section the expiry day); or
(b)if a notice of error is received by the Public Guardian within the period mentioned in subsection (5)(b) or (c) —
(i)where the Public Guardian decides to rectify the relevant error — on the later of the following:
(A)the expiry day;
(B)the day on which the Public Guardian rectifies the relevant error; or
(ii)where the Public Guardian decides not to rectify the relevant error — on the later of the following:
(A)the expiry day;
(B)the day on which the Public Guardian sends the written notice under subsection (11).
(13)  To avoid doubt, the treatment of the electronic copy of a non‑electronic lasting power of attorney as being free from any relevant error and as the lasting power of attorney under subsection (12) does not affect the rights and obligations of any party under the lasting power of attorney, and the date of registration of the lasting power of attorney remains as the date of registration of the non‑electronic lasting power of attorney.
(14)  In this section, “relevant error”, in relation to an electronic copy of a non‑electronic lasting power of attorney, means any disparity or inconsistency between the electronic copy and the lasting power of attorney that is registered by the Public Guardian.”.
Amendment of section 12
5.  Section 12 of the principal Act is amended —
(a)by deleting the words “Part I or II” in subsections (6) and (7) and substituting in each case the words “Part 1 or 2”; and
(b)by deleting subsection (9) and substituting the following subsection:
“(9)  To avoid doubt, an instrument used to create a lasting power of attorney —
(a)may itself appoint one or more replacement donees in respect of a particular donee; but
(b)cannot itself appoint a person to replace any replacement donee.”.
New section 12A
6.  The principal Act is amended by inserting, immediately after section 12, the following section:
“Execution of lasting power of attorney
12A.—(1)  On or after the date of commencement of section 6 of the Mental Capacity (Amendment) Act 2021, where a rule of law requires an instrument conferring authority of the kind mentioned in section 11(1) to be a deed, that requirement is met by an electronic record in the electronic transaction system if —
(a)the electronic record clearly states on its face that it is intended to be a deed by P;
(b)P signs the electronic record by applying a secure electronic signature to the electronic record in the electronic transaction system;
(c)P’s signature is attested by a witness who witnesses P’s execution of the electronic record; and
(d)the executed electronic record is delivered as a deed by P.
(2)  Without limiting subsection (1)(d), an executed electronic record is treated as having been delivered as a deed by P on P making an application to the Public Guardian to register it as a lasting power of attorney.”.
Amendment of section 13
7.  Section 13(10) of the principal Act is amended by deleting the words “P’s property” and substituting the words “P’s personal welfare or property”.
Amendment of section 15
8.  Section 15 of the principal Act is amended by inserting, immediately after subsection (8), the following subsection:
“(9)  A donor who revokes a lasting power of attorney must notify all the following persons that the donor has done so:
(a)the Public Guardian;
(b)the donee or (if there is more than one donee) every donee.”.
New section 15A
9.  The principal Act is amended by inserting, immediately after section 15, the following section:
“Rectification by Public Guardian
15A.—(1)  The donor or donee (or if there is more than one donee, any of them) of a non‑electronic lasting power of attorney may, at any time after the date an electronic copy of it is treated as being free from any relevant error and as the lasting power of attorney under section 11(12), give a notice to the Public Guardian of any relevant error in the electronic copy.
(2)  The Public Guardian may, upon receipt of any notice mentioned in subsection (1) or on the Public Guardian’s own initiative, rectify a relevant error in an electronic copy of a non‑electronic lasting power of attorney.
(3)  The Public Guardian must give a written notice of any rectification under subsection (2) to the donor and the donee or (if there is more than one donee) every donee of the non‑electronic lasting power of attorney.
(4)  The Public Guardian must maintain a record of every rectification made under subsection (2).
(5)  In this section —
“electronic copy”, in relation to a non‑electronic lasting power of attorney, means an electronic copy of the lasting power of attorney caused to be made and kept in the electronic transaction system by the Public Guardian;
“relevant error”, in relation to an electronic copy of a non‑electronic lasting power of attorney, means any disparity or inconsistency between the electronic copy and the lasting power of attorney that is registered by the Public Guardian.”.
New section 16A
10.  The principal Act is amended by inserting, immediately after section 16, the following section:
“Protection of donees and others if electronic copy of lasting power of attorney has relevant error
16A.—(1)  If an electronic copy of a non‑electronic lasting power of attorney has a relevant error, a donee of the lasting power of attorney who does an act in reliance on the electronic copy without knowing of the relevant error does not incur any liability to P or to any other person, by reason only of the relevant error.
(2)  If an electronic copy of a non‑electronic lasting power of attorney has a relevant error, a person who deals or otherwise transacts in good faith with the donee without knowing of the relevant error is entitled to rely on the electronic copy in relation to that dealing or transaction.
(3)  In this section, where 2 or more donees are appointed under a non‑electronic lasting power of attorney, a reference to the donee is a reference to all or any of the donees.
(4)  In this section —
“electronic copy”, in relation to a non‑electronic lasting power of attorney, means —
(a)an electronic copy of the lasting power of attorney that is treated as being free from any relevant error and as the lasting power of attorney under section 11(12); or
(b)where the electronic copy mentioned in paragraph (a) has been rectified by the Public Guardian under section 15A(2), the electronic copy so rectified;
“relevant error”, in relation to an electronic copy of a non‑electronic lasting power of attorney, means any disparity or inconsistency between the electronic copy and the lasting power of attorney that is registered by the Public Guardian.”.
Amendment of section 31
11.  Section 31(1) of the principal Act is amended by deleting the full‑stop at the end of paragraph (k) and substituting a semi‑colon, and by inserting immediately thereafter the following paragraph:
“(l)establishing and maintaining the electronic transaction system.”.
New section 31A
12.  The principal Act is amended by inserting, immediately after section 31, the following section:
“Public Guardian may interview donor
31A.—(1)  If on receiving an application to register an instrument purporting to create a lasting power of attorney, the Public Guardian has reasonable cause to suspect that fraud or undue pressure was used to induce a person (“P”) to —
(a)execute the instrument; or
(b)execute the instrument to appoint a particular person as P’s donee,
the Public Guardian or an authorised officer mentioned in section 30(3) may require P to appear before the Public Guardian or the authorised officer (as the case may be) at any reasonable time and at any convenient place.
(2)  The Public Guardian or authorised officer may interview P to ascertain whether any fraud or undue pressure was used to induce P to do either of the acts mentioned in subsection (1)(a) or (b).
(3)  Where the Public Guardian has reason to suspect that fraud or undue pressure has been used to induce P to execute an instrument to appoint a particular person as P’s donee, the Public Guardian may disclose to P the following information:
(a)the number of lasting powers of attorney under which that person is appointed as donee;
(b)the number of applications pending for the registration of an instrument that appoints that person as a donee under the instrument.”.
New section 32A
13.  The principal Act is amended by inserting, immediately after section 32, the following section:
“Evidence of transaction with Public Guardian
32A.—(1)  Despite any other written law or rule of law, any document prepared by the Public Guardian that —
(a)consists of information reproduced or extracted from any original document; and
(b)contains a statement by the Public Guardian that the information is a true reproduction or extract of the original document,
is in any proceedings admissible in evidence in place of and to the same extent as the original document, unless evidence to the contrary is adduced.
(2)  A copy of an instrument certified by the Public Guardian under paragraph 11 of the First Schedule to be a true copy of the original instrument registered to create a lasting power of attorney is —
(a)evidence of the contents of the original instrument on the date and time specified on that copy; and
(b)evidence of the registration of the instrument by the Public Guardian on the date and time specified on that copy.
(3)  In this section, “original document” means a document that is filed or lodged with, submitted to, or issued by, the Public Guardian.”.
New section 33A
14.  The principal Act is amended by inserting, immediately after section 33, the following section:
“Rectification or updating on Public Guardian’s initiative
33A.—(1)  The Public Guardian may rectify or update any particulars or document in a register kept by the Public Guardian, if the Public Guardian is satisfied that —
(a)there is an error or a defect in the particulars or document arising from any grammatical, typographical or similar mistake; or
(b)there is evidence of a conflict between the particulars of a person and —
(i)any other information in the register relating to that person; or
(ii)any other information relating to that person obtained from any Singapore public sector agency that may be prescribed.
(2)  Before the Public Guardian rectifies or updates a register under subsection (1), the Public Guardian must, except under prescribed circumstances, give written notice to the person whose particulars or document is to be rectified or updated of the Public Guardian’s intention to do so, and state in the notice —
(a)the reasons for and details of the proposed rectification or updating to be made to the register; and
(b)the date by which any written objection to the proposed rectification or updating must be delivered to the Public Guardian, being a date at least 14 days (or any longer prescribed period) after the date of the notice.
(3)  The person notified under subsection (2) may deliver to the Public Guardian, not later than the date specified under subsection (2)(b), a written objection to the proposed rectification or updating of the register.
(4)  The Public Guardian must not rectify or update the register if the Public Guardian receives a written objection under subsection (3) to the proposed rectification or updating of the register by the date specified under subsection (2)(b), unless the Public Guardian is satisfied that the objection is frivolous or vexatious or has been withdrawn.
(5)  The Public Guardian may rectify or update the register if the Public Guardian does not receive a written objection under subsection (3) by the date specified under subsection (2)(b).
(6)  The Public Guardian may include such notation as the Public Guardian thinks fit on a register for the purposes of providing information relating to any error or defect in any particulars or document in the register, and may remove such notation if the Public Guardian is satisfied that it no longer serves any useful purpose.
(7)  Despite anything in this section, the Public Guardian may, if the Public Guardian is satisfied that there is any error or defect in any particulars or document in a register, by written notice, request that the person to which the particulars or document relates take such steps within such time as the Public Guardian may specify to ensure that the error or defect is rectified.
(8)  In this section —
“document” does not include a lasting power of attorney;
“register” means —
(a)a register of lasting powers of attorney;
(b)a register of orders appointing deputies; or
(c)a register of professional deputies.”.
New section 43C
15.  The principal Act is amended by inserting, immediately after section 43B, the following section:
“Service of documents
43C.—(1)  A document that is permitted or required by this Act to be served by the Public Guardian on a person may be served as described in this section.
(2)  This section does not apply to documents to be served in proceedings in court for an offence or any other matter under this Act.
(3)  Subject to subsections (2), (6), (7), (8) and (9), a document may be served on an individual —
(a)by giving it to the individual personally;
(b)by sending it by prepaid registered post or ordinary post to the address specified by the individual for the service of documents or, if no address is so specified, the individual’s residential address or business address;
(c)by leaving it at the individual’s residential address with an adult person apparently residing there, or at the individual’s business address with an adult person apparently employed there;
(d)by affixing a copy of the document in a conspicuous place at the individual’s residential address or business address;
(e)by sending it by fax to the fax number given by the individual as the fax number for the service of documents under this Act;
(f)by sending it by email to the individual’s email address; or
(g)by sending it to the individual’s account with the electronic transaction system and notifying the individual of this fact by —
(i)email to the individual’s email address; or
(ii)an electronic notice to the individual’s mobile telephone number via short message service.
(4)  Subject to subsections (2), (6), (7), (8) and (9), a document may be served on a partnership (other than a limited liability partnership) —
(a)by giving it to any partner or other similar officer of the partnership;
(b)by leaving it at, or by sending it by prepaid registered post or ordinary post to, the partnership’s business address;
(c)by sending it by fax to the fax number used at the partnership’s business address;
(d)by sending it by email to the partnership’s email address; or
(e)by sending it to the partnership’s account with the electronic transaction system and notifying the partnership of this fact by —
(i)email to the partnership’s email address; or
(ii)an electronic notice to the partnership’s mobile telephone number via short message service.
(5)  Subject to subsections (2), (6), (7), (8) and (9), a document may be served on a body corporate (including a limited liability partnership) or an unincorporated association —
(a)by giving it to the secretary or other similar officer of the body corporate or unincorporated association, or the limited liability partnership’s manager;
(b)by leaving it at, or by sending it by prepaid registered post or ordinary post to, the body corporate’s or unincorporated association’s registered office or principal office in Singapore;
(c)by sending it by fax to the fax number used at the body corporate’s or unincorporated association’s registered office or principal office in Singapore;
(d)by sending it by email to the body corporate’s or unincorporated association’s email address; or
(e)by sending it to the body corporate’s or unincorporated association’s account with the electronic transaction system and notifying the body corporate or unincorporated association of this fact by —
(i)email to the body corporate’s or unincorporated association’s email address; or
(ii)an electronic notice to the body corporate’s or unincorporated association’s mobile telephone number via short message service.
(6)  A document may only be served on a person by sending it to the person’s account with the electronic transaction system and notifying the person of this fact by an electronic notice to the person’s mobile telephone number via short message service under subsection (3)(g)(ii), (4)(e)(ii) or (5)(e)(ii) if the person has —
(a)given written consent to the Public Guardian to serve any document using that manner of service; and
(b)provided the person’s mobile telephone number to the Public Guardian for this purpose.
(7)  Where a person has given the person’s written consent to the Public Guardian under subsection (6)(a) and provided the person’s mobile telephone number to the Public Guardian under subsection (6)(b), and there is a change to the person’s mobile telephone number, the person must, as soon as practicable but not later than the prescribed period, give notice to the Public Guardian of such change in any manner and form that the Public Guardian requires.
(8)  Each of the following notices may not be served by sending it to the person’s account with the electronic transaction system and notifying the person of this fact by an electronic notice to the person’s mobile telephone number via short message service under subsection (3)(g)(ii), (4)(e)(ii) or (5)(e)(ii):
(a)a notice under section 11(5)(b) or (c);
(b)a notice under paragraph 5 of the First Schedule;
(c)a notice of cancellation of registration of an instrument as a lasting power of attorney under paragraph 12(2) of the First Schedule;
(d)a notice to inform a person of the Public Guardian’s refusal to register the person as a professional deputy under section 25A;
(e)a notice of intention to cancel the registration of a professional deputy under section 25A(5);
(f)a notice of intention to rectify a register under section 33A(2).
(9)  The notices mentioned in subsection (8)(a) and (c) to (f) may not be served by ordinary post.
(10)  Service of a document on a person under this section takes effect —
(a)if the document is sent by prepaid registered post — on the second day after the day the document was posted (even if it is returned undelivered);
(b)if the document is sent by fax and a notification of successful transmission is received — on the day of the transmission;
(c)if the document is sent by email — at the time that the email becomes capable of being retrieved by the person at the email address of the person; or
(d)if the document is sent to the person’s account with the electronic transaction system — at the time when an electronic record of the document reaches the person’s account.
(11)  In this section —
“business address” means —
(a)in the case of an individual, the individual’s usual or last known place of business in Singapore; and
(b)in the case of a partnership (other than a limited liability partnership), the partnership’s principal or last known place of business in Singapore;
“email address” means the last email address given by the addressee concerned to the Public Guardian as the email address for the service of documents under this Act;
“mobile telephone number” means the last mobile telephone number given by the addressee concerned to the Public Guardian as the mobile telephone number for the service of an electronic notice under subsection (3)(g)(ii), (4)(e)(ii) or (5)(e)(ii);
“person”, in respect of which a document may be served, includes a partnership and an unincorporated association;
“residential address” means an individual’s usual or last known place of residence in Singapore.”.
Amendment of section 46
16.  Section 46 of the principal Act is amended —
(a)by deleting the word “and” at the end of subsection (2)(a);
(b)by deleting the full‑stop at the end of paragraph (b) of subsection (2) and substituting a semi‑colon, and by inserting immediately thereafter the following paragraphs:
“(c)prescribe the form and manner in which any prescribed notice is required to be given by any person to the Public Guardian, or to be given by a donor to a donee or vice versa;
(d)prescribe the persons who may be given access by the Public Guardian to view a lasting power of attorney on the electronic transaction system or obtain any information on any particular lasting power of attorney, and the requirements that must be satisfied before the Public Guardian may give such access or information, as the case may be; and
(e)contain such supplementary and incidental provisions as appear to the Minister to be appropriate for carrying out the purposes of Part IIIA.”; and
(c)by inserting, immediately after subsection (2), the following subsection:
“(3)  For the purposes of subsection (2)(c), a different form and manner may be prescribed for any notice to be given to the Public Guardian or donor or donee under different circumstances.”.
Repeal and re-enactment of First Schedule
17.—(1)  The First Schedule to the principal Act is repealed and the following Schedule substituted therefor:
“FIRST SCHEDULE
Sections 11(2), (2A) and (3), 12(6) and (7), 16(1), 32A(2), 43C(8) and 45
Lasting powers of attorney: formalities
Part 1
MAKING INSTRUMENTS
General requirements as to making instruments
1.—(1)  An instrument is not made in accordance with this Schedule unless —
(a)subject to paragraph 3 —
(i)it is made using the electronic transaction system and is in the prescribed form provided in the electronic transaction system; or
(ii)in a case where section 11(2A) applies — it is in any of the forms provided at the prescribed website;
(b)it complies with paragraph 2;
(c)the donor executes the instrument in the presence of a witness, who must be a person mentioned in paragraph 2(1)(e), and must attest the donor’s execution of the instrument; and
(d)all the prescribed requirements in connection with its execution are satisfied.
(2)  Regulations made under section 46 may make different provision according to whether —
(a)the instrument relates to personal welfare or to property and affairs (or to both); or
(b)only one or more than one donee is to be appointed (and if more than one, whether jointly or jointly and severally).
Requirements as to content of instruments
2.—(1)  The instrument must include —
(a)the information specified in any of the forms mentioned in paragraph 1(1)(a) about the purpose of the instrument and the effect of a lasting power of attorney;
(b)a statement by the donor to the effect that the donor —
(i)has read the information mentioned in sub‑paragraph (a) (or has had it read to the donor); and
(ii)intends the authority conferred under the instrument to mean authority to make decisions on the donor’s behalf in circumstances where the donor no longer has capacity;
(c)a statement by the donee (or if there is more than one donee, each of them) to the effect that the donee —
(i)has read the information mentioned in sub‑paragraph (a) (or has had it read to the donee); and
(ii)understands the duties imposed on a donee of a lasting power of attorney under sections 3 (the principles) and 6 (best interests);
(d)a statement by the replacement donee (if any) or if there is more than one replacement donee, each of them, to the effect that the replacement donee —
(i)has read the information mentioned in sub‑paragraph (a) (or has had it read to the replacement donee); and
(ii)understands the duties imposed on a donee of a lasting power of attorney under sections 3 (the principles) and 6 (best interests);
(e)a certificate by a person of a prescribed description that, in the person’s opinion, at the time when the donor executes the instrument —
(i)the donor understands the purpose of the instrument and the scope of the authority conferred under it;
(ii)no fraud or undue pressure is being used to induce the donor to create a lasting power of attorney; and
(iii)there is nothing else which would prevent a lasting power of attorney from being created by the instrument; and
(f)a statement by the person mentioned in sub‑paragraph (e) that the person witnessed the donor’s execution of the instrument.
(2)  The certificate mentioned in sub‑paragraph (1)(e) may not be given by a person appointed as donee under the instrument.
Failure to comply with form
3.—(1)  If an instrument differs in an immaterial respect in form or mode of expression from any form for an instrument provided at the prescribed website or in the electronic transaction system (as the case may be), it is to be treated by the Public Guardian as sufficient in point of form and expression.
(2)  The court may declare that an instrument which is not in any form for an instrument provided at the prescribed website or in the electronic transaction system (as the case may be) is to be treated as if it were, if the court is satisfied that the persons executing the instrument intended it to create a lasting power of attorney.
(3)  To avoid doubt, an instrument is treated as being made in a form for the instrument provided at the prescribed website or in the electronic transaction system (as the case may be), if it complies with the form that was provided at the prescribed website or in the electronic transaction system (as the case may be) at the time of its making.
Part 2
REGISTRATION
Applications and procedure for registration
4.—(1)  An application to the Public Guardian for the registration of an instrument that is intended to create a lasting power of attorney must be made —
(a)within 6 months (or any longer period determined by the Public Guardian if the Public Guardian is satisfied that there is good reason for the delay) after the date on which the donor executes the instrument;
(b)using the electronic transaction system or, in a case where section 10C(2) or 11(2A) applies, in the form provided at the prescribed website; and
(c)by the donor.
(2)  An application made under sub‑paragraph (1) must be accompanied by the instrument.
(3)  Unless waived by the Public Guardian in any particular case, the prescribed fee for the registration of the instrument must be paid in the manner specified by the Public Guardian, within the prescribed period (or any longer period determined by the Public Guardian if the Public Guardian is satisfied that there is good reason for the delay).
(4)  If the prescribed fee is not paid in accordance with sub‑paragraph (3), the application is treated as not having been made.
(5)  Subject to paragraphs 7, 8 and 9, the Public Guardian must register the instrument as a lasting power of attorney at the end of the prescribed period if —
(a)the application complies with sub‑paragraphs (1), (2) and (3); and
(b)the Public Guardian is not aware that any of the following events has occurred:
(i)the donor has passed away;
(ii)the instrument is revoked as a result of the donor’s bankruptcy;
(iii)the donor has revoked the instrument;
(iv)the instrument is revoked as a result of an event mentioned in section 15(5)(a), (b), (c) or (d).
(6)  A person who, in an application for registration of an instrument, makes a statement which the person knows to be false in a material particular shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both.
Notification to donee
5.  As soon as is practicable after receiving an application by the donor under paragraph 4(1) and determining that the application is in order, the Public Guardian must notify the donee (or donees) that the application has been received.
Notification requirements
6.  A notice under paragraph 5 must include such information (if any) as may be mentioned at the prescribed website.
Instrument not made properly or containing ineffective provision
7.—(1)  If it appears to the Public Guardian that an instrument is not made in accordance with section 12A and this Schedule or, in a case where section 11(2A) applies, in accordance with this Schedule, the Public Guardian must not register the instrument unless the court directs the Public Guardian to do so.
(2)  Sub-paragraph (3) applies if the court determines under section 18(1) that the instrument contains a provision which —
(a)would be ineffective as part of a lasting power of attorney; or
(b)would prevent the instrument from operating as a valid lasting power of attorney.
(3)  The court must —
(a)notify the Public Guardian that it has severed the provision; or
(b)direct the Public Guardian not to register the instrument.
(4)  Where the court notifies the Public Guardian that the court has severed a provision, the Public Guardian must register the instrument with a note to that effect attached to it.
Deputy already appointed
8.—(1)  Sub-paragraph (2) applies if it appears to the Public Guardian that —
(a)there is a deputy appointed by the court for the donor; and
(b)the powers conferred on the deputy would, if the instrument were registered, to any extent conflict with the powers conferred on the attorney.
(2)  The Public Guardian must not register the instrument unless the court directs the Public Guardian to do so.
Objection by donee
9.—(1)  Sub-paragraph (2) applies if a donee —
(a)receives a notice under paragraph 5 of an application for the registration of an instrument; and
(b)before the end of the prescribed period, gives notice to the Public Guardian of an objection to the registration on the ground that an event mentioned in section 15(3) or (5)(a) to (d) has occurred which has revoked the instrument.
(2)  If the Public Guardian is satisfied that the ground for making the objection is established, the Public Guardian must not register the instrument unless the court, on the application of the person applying for the registration —
(a)is satisfied that the ground is not established; and
(b)directs the Public Guardian to register the instrument.
(3)  Sub-paragraph (4) applies if a donee —
(a)receives a notice under paragraph 5 of an application for the registration of an instrument; and
(b)before the end of the prescribed period —
(i)makes an application to the court objecting to the registration on a prescribed ground; and
(ii)notifies the Public Guardian of the application.
(4)  The Public Guardian must not register the instrument unless the court directs the Public Guardian to do so.
Registration
10.—(1)  The Public Guardian may register an instrument in any form and manner as the Public Guardian may determine (including in an electronic form and by electronic means).
(2)  Where the Public Guardian registers an instrument under this Schedule, the Public Guardian must give notice of such registration, in the form provided at the prescribed website, to the following persons:
(a)the donor;
(b)the donee (or if there is more than one donee, each of them).
Evidence of registration, etc.
11.  The Public Guardian may, in accordance with any prescribed requirements (if prescribed), give to a person a copy of, or certify a copy of, an instrument registered by the Public Guardian under this Schedule to create a lasting power of attorney.
Part 3
CANCELLATION OF REGISTRATION AND
NOTIFICATION OF SEVERANCE
Cancellation of registration
12.—(1)  The Public Guardian must cancel the registration of an instrument as a lasting power of attorney —
(a)upon receipt of a notice mentioned in section 15(9)(a), if the Public Guardian is satisfied that the donor has taken such steps as are necessary in law to revoke the lasting power of attorney; or
(b)on being satisfied that the power has been revoked —
(i)as a result of the donor’s bankruptcy;
(ii)as a result of the donor’s death; or
(iii)on the occurrence of an event mentioned in section 15(5)(a), (b), (c) or (d).
(2)  If the Public Guardian cancels the registration of an instrument, the Public Guardian must notify —
(a)the donor (except where sub‑paragraph (1)(b)(ii) applies); and
(b)the donee (or if there is more than one donee, each of them).
Direction by court to cancel registration
13.  The court must direct the Public Guardian to cancel the registration of an instrument as a lasting power of attorney if the court —
(a)determines under section 17(2)(a) that a requirement for creating the power was not met;
(b)determines under section 17(2)(b) that the power has been revoked or has otherwise come to an end; or
(c)revokes the power under section 17(4)(b) or (c).
Circumstances for severance or cancellation
14.—(1)  Sub-paragraph (2) applies if the court determines under section 18(1) that a lasting power of attorney contains a provision which —
(a)is ineffective as part of a lasting power of attorney; or
(b)prevents the instrument from operating as a valid lasting power of attorney.
(2)  The court must —
(a)notify the Public Guardian that it has severed the provision; or
(b)direct the Public Guardian to cancel the registration of the instrument as a lasting power of attorney.
Delivery of instrument on cancellation of registration
15.  On the cancellation of the registration of an instrument that is not made using electronic means, any person who possesses all or any of the following documents must deliver them to the Public Guardian to be destroyed:
(a)the instrument;
(b)any copy of the instrument that has been certified by the Public Guardian under paragraph 11.
Part 4
RECORDS OF ALTERATIONS IN REGISTERED POWERS
Forms
16.  A reference to a numbered form in paragraphs 17, 18 and 19 is a reference to the current version of the form bearing the corresponding number set out at the prescribed website or in the electronic transaction system.
Partial revocation of power as a result of bankruptcy
17.—(1)  If in the case of a registered instrument that is in Form 1, it appears to the Public Guardian that under section 15 a lasting power of attorney is revoked in relation to the donor’s property and affairs (but not in relation to other matters), the Public Guardian must attach to the instrument a note to that effect.
(2)  If in the case of a registered instrument that is in Form 2, it appears to the Public Guardian that —
(a)the donor is bankrupt; or
(b)an event (other than an event mentioned in sub‑paragraph (a)) that is identified in the registered instrument in the manner required by Form 2 as one which would result in the revocation of a lasting power of attorney in relation to the donor’s property and affairs (but not in relation to other matters) has occurred,
the Public Guardian must attach to the instrument a note stating this fact.
Termination of appointment of donee which does not revoke power
18.—(1)  If in the case of a registered instrument that is in Form 1, it appears to the Public Guardian that an event has occurred —
(a)which has terminated the appointment of a donee; but
(b)which has not revoked the instrument,
the Public Guardian must attach to the instrument a note to that effect.
(2)  If in the case of a registered instrument that is in Form 2, it appears to the Public Guardian that —
(a)an event mentioned in section 15(5)(a), (b), (c) or (d) has occurred in relation to a donee; or
(b)an event (other than an event mentioned in sub‑paragraph (a)) that is identified in the registered instrument in the manner required by Form 2 as one which would —
(i)terminate the appointment of a donee; but
(ii)not revoke the instrument,
has occurred,
the Public Guardian must attach to the instrument a note stating this fact.
Replacement of donee
19.—(1)  If in the case of a registered instrument that is in Form 1, it appears to the Public Guardian that a donee has been replaced under the terms of the instrument, the Public Guardian must attach to the instrument a note to that effect.
(2)  If in the case of a registered instrument that is in Form 2 and that appoints one or more replacement donees, it appears to the Public Guardian that —
(a)an event mentioned in section 15(5)(a), (b), (c) or (d) has occurred in relation to a donee; or
(b)an event (other than an event mentioned in sub‑paragraph (a)) that is identified in the registered instrument in the manner required by Form 2 as one which would replace a donee under the terms of the instrument has occurred,
the Public Guardian must attach to the instrument a note stating this fact.
Severance of ineffective provisions
20.  If in the case of a registered instrument, the court notifies the Public Guardian under paragraph 14(2)(a) that the court has severed a provision of the instrument, the Public Guardian must attach to the instrument a note to that effect.
Delivery of instrument for attachment of note
21.—(1)  If the Public Guardian is required to attach a note to a registered instrument (that is not an electronic instrument) under paragraph 7(4), 17, 18, 19 or 20, any person who possesses all or any of the following documents must (if required by the Public Guardian) deliver them to the Public Guardian:
(a)the instrument;
(b)any copy of the instrument that has been certified by the Public Guardian under paragraph 11.
(2)  The Public Guardian may attach to the registered instrument, the note in any form and manner as the Public Guardian may determine (including in an electronic form and by electronic means).
Notification of alterations
22.  If the Public Guardian attaches a note to an instrument under paragraph 7(4), 17, 18, 19 or 20, the Public Guardian must give notice of the note to the donor and the donee or donees of the power (or, as the case may be, to the other donee or donees of the power).
Part 5
MISCELLANEOUS
Recognition of electronic record
23.  To avoid doubt —
(a)a registered instrument under this Schedule;
(b)a copy of a registered instrument given by the Public Guardian under this Schedule;
(c)a copy of a registered instrument certified by the Public Guardian under this Schedule; or
(d)a note attached to a registered instrument by the Public Guardian under this Schedule,
is not to be denied legal effect, validity or enforceability solely on the ground that it is in the form of an electronic record.”.
(2)  The principal Act, as amended by subsection (1), is further amended by inserting, immediately after paragraph 1 of the First Schedule, the following paragraph:
“Remote witnessing of execution of electronic instrument by donor
1A.—(1)  For the purposes of paragraph 1(1)(c), if the Public Guardian has given prior approval on an application made under sub‑paragraph (2), the requirement that the donor execute the instrument in the presence of a witness may be met by the witness witnessing the donor’s execution of the electronic instrument via a live video or live television link and by using a method of accessing the electronic instrument which enables the witness to view the contents of the instrument being executed and to attest the execution on the same instrument.
(2)  Upon an application by the donor, the Public Guardian may grant approval for the donor to execute the instrument in accordance with sub‑paragraph (1) and the prescribed requirements, if the Public Guardian is satisfied that there is good reason why the donor cannot appear physically before a person mentioned in paragraph 2(1)(e) to execute the electronic instrument.
(3)  Where the Public Guardian refuses to grant an application under sub‑paragraph (2), the Public Guardian must, if requested to do so by the donor, state in writing the reasons for the Public Guardian’s refusal.”.
Related amendment to Electronic Transactions Act
18.  Item 3 of the First Schedule to the Electronic Transactions Act is amended by inserting, immediately after the words “resulting trusts” in the second column, the words “and a lasting power of attorney defined under section 2(1) of the Mental Capacity Act”.
Saving and transitional provisions
19.—(1)  For the purposes of section 11(2)(b) of the principal Act as amended by section 4, section 11 of the principal Act as in force immediately before the date of commencement of section 4 continues to apply to or in relation to any instrument conferring authority of the kind mentioned in section 11(1) of the principal Act that is executed by a donor before that date.
(2)  For the purposes of section 11(2)(b) of the principal Act as amended by section 4, Part I of the First Schedule to the principal Act as in force immediately before the date of commencement of section 17(1) continues to apply to an instrument conferring authority of the kind mentioned in section 11(1) of the principal Act that is executed by the donor of that instrument before that date.
(3)  For the purposes of section 11(2)(b) of the principal Act as amended by section 4, Part II of the First Schedule to the principal Act as in force immediately before the date of commencement of section 17(1) continues to apply to or in relation to an application for the registration of an instrument intended to create a lasting power of attorney, where that instrument conferring authority of the kind mentioned in section 11(1) of the principal Act was executed by the donor of the instrument before that date.
(4)  For a period of 2 years after the date of commencement of any provision of this Act, the Minister may, by regulations, prescribe such additional provisions of a saving or transitional nature consequent on the enactment of that provision as the Minister may consider necessary or expedient.
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Last updated 29 Jan 2025
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