A High Court case has shown up problems that can arise when a person appointed to act for someone lacking mental capacity dies and is not automatically replaced.
“There appears to be nothing in the Mental Capacity Act (MCA)… that allows for any agency, such as the Office of the Public Guardian or the Insolvency and Public Trustee’s Office , to act in the place of the deceased deputy, ” said Judicial Commissioner Aedit Abdullah.
His remarks came in judgment grounds released yesterday in the case of a man who bought a $270,000 HDB flat from a dementia-ridden owner, whose daughter acted on his behalf.
The seller’s daughter, Ms Millicent Ruby De Silva, had obtained a court order in 2009 under the then Mental Disorders and Treatment Act, later replaced by the MCA. This authorised her to represent her father at court hearings but did not empower her to execute documents in relation to his properties.
Ms De Silva acted for her father in completing the sale of the unit in 2010 to Mr Peter Nathan, who was in a relationship with her. He moved in with them, but after she died in April 2012, his relationship with her father soured and he could not live with him any more.
Mr Nathan said the two surviving children of Mr Arthur De Silva Petiyaga, 75, who had dementia and other medical conditions, had declined to take care of him when approached.
He then took legal action to possess the house in 2014 but learnt he was not the registered owner of the flat as the late Ms De Silva’s signatures on the documents on her father’s behalf were invalid.
Mr Nathan then applied to the High Court for an order to “perfect” the sale of the flat to him. His lawyers from Vision Law LLC argued that all parties had consented to the sale then and it was appropriate for the court to intervene.
JC Abdullah disagreed and rejected the move, but not before exploring several avenues to try to resolve the case in the interest of all. He noted that Mr Nathan had to live in the open at times.
The best course was to appoint a a new deputy to look after the interests of Mr De Silva, but family members were unable or unwilling and neither was the Public Trustee or Public Guardian able to take up the task, noted the judge.
Noting that the late Ms De Silva had no powers to authorise the sale on her dad’s behalf in the first place, the judge said the court cannnot intervene in this case. While it could under the MCA, this case was not started under the MCA, he said.
He said the significant issue was that there was no mechanism to allow the Public Guardian or other agencies to act for Mr De Silva immediately after his daughter died.
He suggested if the courts had the flexibility for such cases, it could initiate MCA proceedings to appoint a deputy and give directions to resolve the case even if there was no such application.
He said such a “judge-led approach” would be a departure from the current adversarial-style arrangements. “This may be a matter for the relevant agencies to consider,” he added. Mr Nathan is appealing against the judgment.
This article was first published on April 22, 2016.
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