As the Covid-19 pandemic in Malaysia continues to escalate, an increasing number of Malaysians and their loved ones are suddenly confronted with the fragility of life and the terrifying prospect of an abrupt and unexpected death. There is also a growing concern among Malaysians about their welfare in the event that they suffer from physical or mental impairments. These have led more Malaysians to enquire about making a Living Will and/or a Lasting Power of Attorney (“LPA”) (sometimes referred to as a durable Power of Attorney).
A Living Will, in simple terms, allows a person to state his or her wishes in respect of medical health care in advance and the document may then be referred to at the time when the person is no longer capable of making or communicating their wishes and decisions. This is to be differentiated from a LPA which is a document that allows its maker to appoint another person as his or her attorney to make decisions or carry out the maker’s directions on the maker’s behalf when he or she is unable to do so.
This article will highlight and explain some of the features of a Living Will and a LPA as well as the legal challenges of implementing such concepts in Malaysia.
What is a Living Will?
A Living Will is a form of advance directive which allows its maker to make anticipatory decisions and give instructions pertaining to his or her future medical care and treatment in the event he or she becomes incapable of such decision-making. Unlike a regular Will which takes effect upon the death of the maker, a Living Will takes effect during the maker’s lifetime—more specifically, at the time when the maker is no longer able to make or communicate his or her decisions, be it due to illness or mental impairment. A Living Will allows its maker to decide on his or her end-of-life care ahead of time. For example, whether life-sustaining measures such as artificial nutrition or life-sustaining machines may be used to prolong his or her life. In a sense, having a Living Will may enable its maker to protect and preserve his or her autonomy and dignity during the final stages of life.
Where there’s a Will—The Position of Living Wills in the UK and Singapore:
United Kingdom
Living Wills or Advance Decisions (as so termed in the UK) are governed under the Mental Capacity Act 2005 (“MCA 2005”). An Advance Decision would only be acted upon when it is determined that the relevant person lacks the capacity to make a specific decision at the material time. The MCA 2005 expressly sets out statutory principles to be applied which include, inter alia, the following:
A person lacks capacity 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 a disturbance in the functioning of the mind or brain, regardless of whether the impairment or disturbance is permanent or temporary. Crucially, it must be noted that a person’s lack of capacity cannot be established simply by reference to the person’s age, appearance, a condition of his, or an aspect of his behaviour which might lead others to make unjustified assumptions about his capacity.
1 However, a person is unable to make a decision for himself if it is determined that he is unable to understand or retain the information relevant to the decision, use or weigh such information as part of the decision-making process or communicate his decision (whether by talking or any other means).
2
It must be noted that an Advance Decision in the UK covers a person’s refusal in terms of undergoing specific types of medical treatment and should not be confused with an Advance Statement which sets out a person’s wishes, preferences, beliefs and values in relation to their future care. The former is legally binding in the UK whilst the latter is not.
Singapore
Living Wills or Advance Medical Directives (as so termed in Singapore) are governed under the Advance Medical Directive Act 1996 (“
AMDA 1996”). Advance Medical Directives may be used to refuse any “extraordinary life-sustaining treatment” which is defined under the AMDA 1996 as any medical procedure which, when administered to a terminally ill patient, will only prolong the process of dying when death is imminent, but excludes palliative care.
3 An Advance Medical Directive will only come into effect in specific circumstances where the relevant person:
Interestingly, the AMDA 1996 makes it an offence for a person who has or who will likely have the medical care of any patient to enquire if the patient has made or intends to make an Advance Medical Directive.
6 It is likely that the rationale for such confidentiality is to prevent the knowledge of the existence of an Advance Medical Directive or the lack thereof from colouring the judgment of medical practitioners as to what course of action or treatment would be in best interest of their patients.
Let Thy Will be Done?—The Current Position of Living Wills in Malaysia
At present, there is no legislation or regulatory instrument in Malaysia that specifically recognises or governs the concept of Living Wills. Although not formally recognised in Malaysia, the guidelines issued by the Malaysian Medical Council (MMC) on Consent for Treatment of Patients by Registered Medical Practitioners specifically recognises the use of Living Wills in the medical practice field in Malaysia where a patient can make an unequivocal written directive which prohibits the administration or provision of a specific treatment or procedure in certain circumstances. However, this shall not apply where the patient’s directive contains instructions for illegal activities such as euthanasia or the termination of pregnancy.
7
Some Malaysian doctors have advocated the need for the recognition of Living Wills or Advance Medical Directives in Malaysia
8 whilst others including religious groups have called for clear guidelines to be issued including the right of the next-of-kin of a patient to make decisions on behalf of the patient.
9
You’ve got the Power!—The Concept of LPAs in UK and Singapore
It must be noted that a Living Will only covers a person’s medical and health care decisions. In this sense, a Living Will alone is insufficient to cover and deal with a person’s wishes in terms of his or her finances, assets, properties and other personal affairs. Ideally, a Living Will should be made together with a LPA in countries that recognise both concepts. A LPA is a document which allows its maker (“
donor”) to appoint another person (“
donee”) to make decisions on the donor’s behalf in respect of his or her properties and personal affairs in the event that the donor loses his or her mental capacity.
The UK and Singapore also legislatively recognise the concept of a LPA in addition to Living Wills. The UK MCA 2005 and the Singapore Mental Capacity Act 2008 (“
MCA 2008”) govern the right of a donor in the respective countries to make a LPA which confers on a donee or donees the authority to make decisions in respect of the donor’s personal welfare, property and affairs or specified matters concerning thereof.
10 As such, in addition to a Living Will, it is also possible for a donor in those countries to delegate authority to a donee or donees vide a LPA to make decisions on the donor’s behalf in the event that the donor loses capacity in the future. However, depending on the donor’s individual wishes and needs, a LPA alone may sometimes suffice.
Under the UK MCA 2005, where a LPA authorises a donee to make decisions about the donor’s personal welfare, such authority (subject to any conditions or restrictions stated in the LPA) would also extend to the giving or refusing of consent to carry out or continue a medical treatment for the donor.
11 However, the donee may not give or refuse consent for life-sustaining treatment unless the LPA granted specifically authorises the donee to do so.
12
Conversely, under the Singapore MCA 2008, in order for a donee’s authority to extend to the giving or refusing of consent for treatment, the LPA granted must contain an express provision empowering the donee with such authority.
13 However, notwithstanding any provision in the LPA, a donee
may not make any decision with respect to the carrying out or continuation of life-sustaining treatment on the donor or any other treatment on the donor which a person providing health care reasonably believes is necessary to prevent a serious deterioration in the donor’s condition.
14
It must also be noted that LPAs, whether created pursuant to the UK MCA 2005 or the Singapore MCA 2008, must first be duly registered with the Offices of the Public Guardian (“
OPG”) in the respective countries in order to be valid and effective.
15 In the UK, a distinction is drawn between a LPA for health and welfare, and a LPA for property and financial affairs. As such, two separate LPAs must be made and registered with the OPG in UK where a donor wishes to grant power and authority to his or her donee for both aspects.
On the other hand, in Singapore, a donor may grant powers to his or her donee in respect of both personal welfare as well as property and affairs under a single LPA. A donor also has the flexibility to choose whether to have the standard version of LPA (LPA Form 1) which grants general powers with basic restrictions to donees or a non-standard version of LPA (LPA Form 2) which allows the donor to grant customised powers to their donees. A customised LPA will enable the donor to craft a LPA which will best cater for his or her individual needs.
The Current Position of LPAs in Malaysia
Unlike the UK and Singapore, Malaysia does not recognise the concept of LPAs. In Malaysia, a donor may grant a Power of Attorney (“
PA”) to a donee or donees to make decisions or to carry out the donor’s directions on the donor’s behalf in respect of his or her properties and personal affairs. However, the PA granted ceases to have effect once the said donor is adjudged to have lost his or her mental capacity. This is stipulated in section 5 of the Malaysian Power of Attorney Act 1949 (“
PAA 1949”) which states that a PA duly registered and deposited with the High Court of Malaya is valid and shall continue to be in force until, among other things, where the donor has been adjudged to be of unsound mind. This then ultimately defeats the purpose of creating a PA in cases where the donee is appointed to make decisions or carry out the donor’s directions where the latter has lost his or her capacity.
However, certain exceptions to section 5 are encapsulated in sections 6 and 7 of the PAA 1949. Under these provisions of the PAA 1949, an irrevocable PA given for valuable consideration or a PA expressed to be irrevocable for a fixed time, whether given for valuable consideration or not, shall not be revoked at any time by, among other things, the mental disorder and unsoundness of mind of the donor. However, it must be noted that the legislative provisions specifically state that the PA shall not be revoked
in favour of a purchaser. This suggests that where a donee under an irrevocable PA had sold the property of a mentally incapacitated donor to a purchaser, the utilisation of such powers by the donee in pursuance of the PA and the sale of the property to the purchaser shall be valid. This legal position is supported
per obiter dictum by the Court of Appeal in
Sidambaram Torosamy v Lok Bee Yong [2018] 3 CLJ 599.
As such, it would seem that aside from the aforementioned circumstance, an irrevocable PA would be revoked where the donor has been adjudged to be of unsound mind in accordance with section 5 of the PAA 1949. Whilst the PAA 1949 or the Malaysian Mental Health Act 2001 do not clarify the exact circumstance of when a donor would be “adjudged to be of unsound mind”, it is assumed that this is when a medical expert with the requisite expertise has judged and determined the donor to be of unsound mind. In this sense, a PA would not be of great assistance to a donor who wishes to grant powers to a donee in order to allow the donee to manage and/or utilise the donor’s assets and funds to provide and care for the donor in the event the donor becomes mentally incapacitated.
To Trust or Not to Trust?
Other than a LPA, a trust structure can potentially be used to address concerns in respect of a person’s maintenance and financial affairs in the event that he or she loses his or her mental and/or physical capacity. A possible structure to be considered is where, an individual (known as the settlor of the trust) sets up a trust and specifies in the trust document that the income or funds of the trust is to be used only for the purpose of his or her benefit in the event he or she becomes mentally or physically incapacitated or in the circumstances specified in the trust document. For example, the trust funds may be used for the maintenance, living accommodation, medical care or other needs of the settlor such as to pay for the cost of employing a personal caregiver where the need arises.
The above structure contemplates appointing a trustee or trustees to manage the trust and the setting aside of sufficient funds in advance for the purposes of the trust. Further, in order to validly constitute the trust, the settlor must vest the trust fund in the trustee. This means that the settlor must transfer the trust funds to his or her appointed trustee. This solution is not without shortcomings as there is always the possibility of abuse by the trustee and this is especially perilous further down the line when the settlor has lost mental capacity. As a safeguard, it would be prudent for the settlor to appoint at least two persons as co-trustees who would have equal powers in relation to the trust and must act jointly in the exercise of their powers.
As the setting up of a trust is fraught with many legal considerations and complications, it is always advisable for the settlor to obtain legal advice from an expert in this area before setting up a trust.
Comments
Whilst the cultural and religious beliefs in Malaysia may cause some Malaysians to consider the concept of Living Wills to be a taboo, it is undeniable that having a Living Will has its benefits. In particular, it allows its maker to make decisions and arrangements for his or her end-of-life care in advance whilst he or she is still mentally competent. For patients who are terminally ill and faced with the prospect of slowly losing their faculties, making a Living Will may help them to gain a sense of control over their future and enable their wishes to be carried out even when they are no longer able to communicate such wishes.
Similarly, a LPA is also useful to enable persons to get their property and financial affairs in order whilst they are still mentally competent and appoint a trusted donee or donees to make decisions or bring their directions into effect once they lose their mental and/or physical capacities. In that regard, we strongly advocate for law reform to provide for legal recognition of the concept of Living Wills and LPAs in Malaysia.
Article by Oon Hooi Lin (Partner) and Catherine Looi (Associate) of the Wealth Management, Trusts and Charities Practice of Skrine.