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PETALING JAYA: The proposed Mental Capacity Act will empower Malaysians to plan in advance on the management of their property and legal decisions before they become mentally incapacitated.
Mental capacity generally refers to the ability of a person to make autonomous decisions and includes understanding and reasoning of information, said Assoc Prof Dr Nora Mat Zin, a consultant psychiatrist at International Islamic University Malaysia’s Kuantan Campus.
“Mental capacity can be affected by many reasons such as intellectual ability, brain damage, physical and mental illness. Chronic mental illness may complicate the cognitive ability and impair the thinking process,” she said.
As such, she said the Mental Capacity Act provides significant advantages for mentally incapacitated individuals concerning their estate and will.
She said the proposed Act would provide clarity and a legal framework to assess one’s capacity if there is a dispute among family members regarding the ability of the person to make a will or manage their estate.
“The disagreement between the concerned parties would also be resolved as the Act provides a path to court protection,” she said.
Lawyer Rajesh Nagarajan said unlike the Mental Health Act, where a court-appointed committee steps in only after someone is declared mentally incapacitated, the proposed Mental Capacity Act would allow individuals to take control while they still have the capacity to do so.
“With the proposed Act, people can appoint a trusted decision-maker through a power of attorney, ensuring their estate is managed exactly how they want it to be done,” he said.
On factors that need to be considered in drafting the Bill, Rajesh said the legislation should be laid out in plain language.
“It is crucial that anyone who needs to plan for their future can actually do so without having to interpret complex legal language,” he said.
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He also emphasised on the need to ensure those entrusted with power are held accountable.
“There must be strong oversight mechanisms to prevent any misuse of power.
“The proposed Act should also allow for changes to be made based on differing circumstances.
“Finally, public awareness and education should be part and parcel of enactment of any legislation, especially a social legislation like this,” he added.
The Association of Women Lawyers (AWL) said a Lasting Power of Attorney (LPA) will be activated in the event a person becomes mentally incapacitated temporarily or permanently.
“This could be due to onset of dementia, Alzheimer’s or other illness affecting mental capacity. It could also be for a specific period after surgery or if treatment requires ventilation,” it said.
The person giving the LPA will be called the donor and the person appointed to be surrogate decision-maker is referred to as the “donee”.
According to AWL, the LPA would be lodged in the Registrar under the Court of Protection under the Mental Capacity Act.
This would be similar to what is currently done in Singapore and the United Kingdom.
AWL said the LPA allows for advance planning and thus will not compromise the affairs of the individual in the event of mental incapacity.
“Affairs here can refer to health, wealth and well-being.
“For children with impaired mental capability, their parents can plan for their future when they reach adulthood and are unable to plan for themselves,” it said.
“We must be reminded that the LPA is not just confined to persons with disability but also to everyone living in Malaysia who may face a period of mental incapacity.
“The challenge is that people may be unaware of the existence of the LPA and not understand its importance.”
As such, AWL is calling on the government to raise awareness.
“It is urgently needed to address the gap in our law, especially when Malaysia is reaching an ageing population status by 2030.”
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