Case Details
- Citation: [2024] SGCA 4
- Court: Court of Appeal
- Case Title: ACF & Anor v AKI & 2 Ors (Re Estate of BKR, deceased)
- Decision Date: 14 February 2024
- Judges: Sundaresh Menon CJ; Belinda Ang Saw Ean JCA; Andrew Phang Boon Leong SJ
- Proceedings: Civil Appeal No 27 of 2014 (Summons No 36 of 2023)
- Parties (Applicant/Appellants): ACF & Anor
- Parties (Respondents): AKI & 2 Ors
- Subject Matter: Mental Disorders and Treatment — management of patients’ property and affairs; court-appointed deputies; independent legal advisor; remuneration and fees after death
- Key Procedural History: Earlier decision: Re BKR [2015] 4 SLR 81; appointments of deputies and independent legal advisor by CA/ORC 21/2016 and CA/ORC 20/2016
- Persons Appointed: Three professional deputies: Ms Chee Ai Lien Eunice, Mr Tam Chee Chong, and Mr Wong Yuen Weng Ernest (“Deputies”); independent legal advisor: Ms Marina Chin Li Yuen SC (“ILA”)
- Orders Sought in SUM 36/2023: (1) Discharge of Deputies and ILA; (2) authorisation to continue paying ILA’s fees/disbursements from BKR’s property notwithstanding death; (3) authorisation for Deputies’ remuneration for work after BKR’s demise
- Judgment Length: 8 pages; 1,679 words
Summary
In Re Estate of BKR, deceased ([2024] SGCA 4), the Court of Appeal considered the scope of the Mental Capacity Act 2008 (2020 Rev Ed) (“MCA”) after the death of the person who had been the subject of court-appointed arrangements. The case arose from an earlier Court of Appeal decision in Re BKR ([2015] 4 SLR 81), where the court appointed professional deputies to make decisions for BKR in relation to her property and affairs, and appointed an independent legal advisor to assist the deputies. The deputies were also authorised to be remunerated and to pay the ILA’s fees and expenses out of BKR’s assets.
After BKR died on 25 May 2023, the deputies applied for orders to (i) discharge their appointments and those of the ILA, (ii) continue authorising payment of the ILA’s fees and disbursements from BKR’s property for work done before and after BKR’s death, and (iii) continue authorising the deputies’ remuneration for the period following BKR’s demise. The Court of Appeal granted the discharge order but declined to grant the authorisation and remuneration orders. The court held that the MCA’s primary jurisdiction is designed to operate during the lifetime of the person lacking mental capacity and does not extend to conferring new powers or authorising further payments after death. The proper avenue for remuneration and expenses was for the deputies and ILA to claim from the executors of BKR’s estate.
What Were the Facts of This Case?
The factual background is rooted in the Court of Appeal’s earlier protective jurisdiction under the MCA framework. In Re BKR ([2015] 4 SLR 81), the court determined that BKR lacked the mental capacity to make decisions for herself in relation to her property and affairs. Because the MCA is premised on proxy decision-making for adults who lack capacity, the court appointed deputies to act on BKR’s behalf. This ensured that decisions affecting BKR’s welfare, care, support, property, and personal affairs could be made in a structured and legally supervised manner.
Following that decision, the Court of Appeal appointed three professional deputies by CA/ORC 21/2016: Ms Chee Ai Lien Eunice, Mr Tam Chee Chong, and Mr Wong Yuen Weng Ernest (the “Deputies”). The court also appointed an independent legal advisor (the “ILA”), Ms Marina Chin Li Yuen SC, by CA/ORC 20/2016. The ILA’s role was to provide independent legal assistance within the MCA framework, supporting the deputies in discharging their functions and ensuring that decisions and actions were properly considered through the lens of the statutory principles and best interests requirements.
In addition, the Court of Appeal had previously ordered that the Deputies were entitled to reasonable remuneration for their work. It also authorised the payment of the ILA’s fees and expenses. Importantly, these remuneration and costs were to be paid out of BKR’s assets, reflecting the practical reality that the costs of managing the affairs of a person lacking capacity should be borne by that person’s estate, subject to court oversight.
After BKR died on 25 May 2023, the Deputies filed SUM 36/2023. Their application sought three categories of relief: first, the discharge of the Deputies and the ILA (recognising that they could no longer act for BKR once she had died); second, an authorisation that, notwithstanding BKR’s demise, the Deputies could continue to approve payment out of BKR’s property of the ILA’s fees and disbursements for work done from 1 January 2023 until 25 May 2023 (which had not yet been billed) and for any work done after 25 May 2023; and third, an order that the Deputies continued to be entitled to reasonable remuneration for their role for the period following BKR’s demise, on the same terms previously granted.
What Were the Key Legal Issues?
The central legal issue was whether the Court of Appeal had jurisdiction under the MCA to grant authorisation and remuneration orders after the death of the person who had lacked mental capacity. While the discharge of the deputies and ILA was uncontroversial, the more difficult question concerned the court’s power to continue regulating payments and authorising further actions by deputies once the subject of the MCA regime was no longer alive.
Related to this was the question of the correct legal avenue for settling the Deputies’ and ILA’s remuneration and expenses incurred around the time of death. The Deputies effectively sought to preserve the existing court authorisations and continue the payment mechanism out of BKR’s property, even though the MCA proxy decision-making framework would no longer be applicable. The court had to determine whether such payments could still be authorised within the MCA proceedings, or whether they should instead be dealt with through the administration of BKR’s estate by executors or personal representatives.
Finally, the case raised a conceptual issue about the nature and temporal scope of the MCA jurisdiction. The court needed to interpret the MCA provisions and the statutory principles—particularly those relating to best interests and the decision-specific, time-specific nature of capacity—so as to determine whether the MCA regime has any functional role after death beyond limited residual tasks such as discharge and reporting.
How Did the Court Analyse the Issues?
The Court of Appeal began by restating the purpose and design of the MCA. The court emphasised that the MCA provides a statutory framework for proxy decision-making by qualified persons acting on behalf of adults who lack mental capacity. This framework is not merely procedural; it reflects a substantive rights-based approach grounded in the premise that adults generally have the right to make their own decisions about their lives, including decisions about welfare, care, support, property, and personal affairs. Where possible, the law requires support to enable the person to decide for themselves; where that is not possible, the MCA provides structured mechanisms for decisions to be made in the person’s best interests.
Crucially, the court highlighted that the MCA is decision-specific and time-specific. Section 4(1) of the MCA defines lack of capacity “in relation to a matter” and “at the material time”. This means that capacity is assessed in relation to particular decisions and at particular times, rather than as a blanket status. The court used this to reinforce that the MCA’s proxy decision-making framework is tied to the living person’s decision-making needs at the relevant times.
The court then examined the statutory principles in section 3 of the MCA. These principles include requirements relating to treatment and the minimisation of restrictions on the person’s rights and freedom of action. Section 3(5) further requires that acts done and decisions made on behalf of such persons must be done or made in their best interests, determined under section 6. In determining best interests, decision-makers must consider the likelihood of the person regaining capacity and must, so far as reasonably practicable, permit and encourage the person’s participation in acts and decisions made on their behalf. The court treated these features as evidence that the MCA is designed to operate during the lifetime of the person who lacks capacity.
Having established the MCA’s lifetime-oriented design, the Court of Appeal addressed the question of residual jurisdiction. The court drew an analogy to the traditional English “lunacy jurisdiction”, which was understood to last only so long as the mentally incapacitated person was alive or remained incapacitated (citing In re Wheater [1928] Ch 223). However, the court clarified that this does not mean the court’s involvement ends abruptly upon death. Instead, the court retains a limited residual jurisdiction to conclude or end its involvement in the person’s affairs. Examples include discharging a deputy and releasing or dealing with security, as reflected in the Family Justice Courts Practice Directions, and requiring the deputy to hand over the estate to personal representatives. The court also noted that the Public Guardian may require a final report under the Mental Capacity Regulations 2010.
Applying these principles, the Court of Appeal held that while it could discharge the deputies and the ILA, it could not confer new powers or authorise further actions after death. The authorisation and remuneration orders sought by the Deputies were not merely administrative steps to conclude the court’s involvement; they were substantive authorisations that would effectively extend the deputies’ authority and the court’s regulatory role beyond the MCA’s primary jurisdiction. The court characterised this as “squarely” falling within the primary jurisdiction, which ends upon the person’s death.
Accordingly, the court dismissed the application in part. It granted the Discharge Order because the deputies and ILA ceased to have any powers and authority to act on BKR’s behalf following her demise. But for the Authorisation Order and Remuneration Order, the court found that these were outside the remit of the MCA after death. The court reasoned that remuneration, fees, and expenses should be claimed from the executors of BKR’s estate. This approach aligns with the general legal principle that once a person dies, their property and affairs are administered through the estate process, not through a capacity-based proxy regime.
In reaching this conclusion, the court also took note of the practical posture of the parties. The judgment records that, according to the affidavit of one of the deputies (Ms Chee Ai Lien Eunice), the executors of BKR’s estate were not objecting to the deputies’ and ILA’s claims for remuneration, fees, and expenses incurred during the relevant periods. The Court of Appeal therefore expressed confidence that the deputies and ILA could submit their bills directly to the executors for approval and payment, without needing judicial assistance. This practical observation reinforced the court’s view that the estate administration route was both legally appropriate and workable.
What Was the Outcome?
The Court of Appeal granted the Discharge Order. Specifically, it granted prayer 2 of SUM 36/2023, discharging the appointments of the Deputies and the ILA. This reflected the court’s residual jurisdiction to end its involvement and to formally conclude the proxy arrangements upon BKR’s death.
However, the court made no orders for prayers 1 and 3 of SUM 36/2023, which were the Authorisation Order and the Remuneration Order. The court also made no order as to costs and released the undertaking for security for costs provided by the deputies’ solicitors. In practical terms, the deputies and ILA were required to pursue their remuneration and fees through the executors of BKR’s estate rather than through further MCA-based court authorisations.
Why Does This Case Matter?
Re Estate of BKR, deceased is significant for practitioners because it clarifies the temporal limits of the MCA’s jurisdiction. While courts will discharge deputies and deal with residual matters after death, the decision draws a firm line against using MCA proceedings to authorise new or continuing powers, including authorising payment mechanisms and remuneration, after the incapacitated person has died. This is a crucial point for professional deputies and independent legal advisors who may incur work around the time of death and who may otherwise assume that existing court authorisations can be extended.
For estate administration, the case underscores that remuneration and expenses must be handled through the personal representatives’ processes once death occurs. Practitioners should therefore plan for the transition from MCA oversight to estate administration, ensuring that bills, statements of work, and supporting documentation are prepared for submission to executors. The court’s observation that executors were not objecting in this case suggests that, where estate representatives are cooperative, the need for further court applications may be minimal.
From a doctrinal perspective, the judgment reinforces the MCA’s design as a proxy decision-making regime operating during the lifetime of the person lacking capacity. It also provides a useful interpretive framework by tying the court’s reasoning to the MCA’s decision-specific/time-specific capacity concept and the statutory best interests principles that presuppose a living person whose participation and potential for regaining capacity can be considered. Lawyers advising deputies, ILA providers, or family members should treat this case as authority that the MCA is not a post-death payment authorisation mechanism.
Legislation Referenced
- Mental Capacity Act 2008 (2020 Rev Ed) (“MCA”): ss 3, 4, 6, 20
- Mental Capacity Regulations 2010 (reference to reg 32 regarding final report)
Cases Cited
- Re BKR [2015] 4 SLR 81
- In re Wheater [1928] Ch 223
Source Documents
This article analyses [2024] SGCA 4 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.