Speech by Mr. Louis Ng Kok Kwang, MP for Nee Soon GRC, at the Second Reading of the Mental Capacity (Amendment) Bill (Bill No. 11/2021)
Introduction
This Bill represents another step in the nation’s move to digitalise.
A smooth transition to the new electronic transaction system for lasting powers of attorney (LPA) will simplify the process of making and accessing LPAs.
However, if not managed well, the transition can cause more errors and put users off the new electronic transaction system.
A sizeable number of donors who interact with the system will be the elderly and vulnerable who may require more guidance in navigating the electronic system.
This makes it all the more important to closely and carefully manage the transition.
I have four points for clarification on this Bill on the transition process.
Rectification of relevant errors
My first point is on the rectification of relevant errors.
The new section 11(10) provides that the Public Guardian (PG) may rectify a relevant error if it is satisfied that there is a relevant error.
This suggests that the PG has the discretion to rectify a relevant error, but is not obligated to rectify the error.
The new section 11(12)(b)(ii) also addresses the situation where a PG decides not to rectify a relevant error.
Can Parliamentary Secretary clarify under what circumstances will the PG not rectify a relevant error?
In addition, can Parliamentary Secretary confirm that for the 90-day period before the electronic copy is treated as being free from error, the non-electronic copy remains the LPA?
Can Parliamentary Secretary also then confirm that the donee and third parties are entitled to rely on the non-electronic copy in the 90-day period before the electronic copy becomes the LPA, even if there are discrepancies in the non-electronic copy, which the PG may decide not to rectify in the electronic copy?
Transactions carried out based on relevant errors
My second point is on parties that have relied on relevant errors in carrying out transactions.
The new subsection 10D(3) provides that where an error or omission has been corrected, the error or omission is treated as not having occurred.
The new subsection 16A(2) provides that if an electronic copy of a non-electronic LPA has a relevant error, a person who transacts in good faith without knowing of the error is entitled to rely on the electronic copy for that transaction.
Where a transaction is entered based on a relevant error, which is corrected, can Parliamentary Secretary clarify the effect of the correction on the transaction?
Does the transaction remain valid or will the transaction be unwound?
I ask this because according to section 10D(3) the error is treated as not having occurred, which may mean that the basis of the transaction no longer exists and should be unwound.
However, section 16A(2) provides that a person is entitled to rely on the electronic copy with the relevant error in relation to the transaction, which suggests that the transaction remains valid.
Can Parliamentary Secretary clarify how this potential contradiction should be reconciled?
Approach towards suspected fraud or undue pressure
My third point is on suspected fraud or undue pressure on a donor.
Under the new section 31A(1), a donor may be interviewed if the PG has reasonable cause to suspect that fraud or undue pressure has been used to induce the donor to execute the instrument.
In addition to interviewing the donor, does the PG have the power to interview persons related to the donor or to interview the donee?
In the event that the PG is of the view that there is sufficient evidence to show that fraud or undue pressure was in fact used to induce the donor to execute the instrument, will the PG intervene regardless of the donor’s stated wishes?
What are the steps a PG will take in relation to a donee that it suspects is using fraud or undue pressure to influence multiple donors to appoint her/him as donee?
Transition to electronic transaction system
My fourth point is on how the transition to the electronic transaction system will be implemented.
The new section 10(C)(1) requires a person to use the electronic transaction system if they wish to register an instrument to create an LPA.
Section 10(C)(2) contemplates that there may be some circumstances where a transaction cannot be carried out using the electronic transaction system due to a person’s physical disability or other circumstances.
Can Parliamentary Secretary elaborate on the circumstances under which a person may be exempted from using the electronic transaction system?
The elderly and the vulnerable who may use and need the LPA most may also be the demographic that face the most difficulties using the electronic transaction system.
I’m glad that the Office of Public Guardian (OPG) has already shared its many initiatives and roadshows to educate and provide assistance for using the electronic transaction system.
The UK has also implemented an online service for LPAs. The UK took a gradual rollout approach to their 4 million registered LPAs by opening up the system in batches to LPAs registered in different years.
What are the lessons the Ministry has identified from the UK’s rollout of their online system?
How have these lessons been incorporated into the Ministry and OPG’s efforts to ensure the rollout is a smooth one in Singapore?
Conclusion
Notwithstanding these clarifications, I stand in support of the Bill.
Watch the speech here.