At a recent forum on Mental Capacity Act for Malaysia 2024, the Deputy Minister in the Prime Minister’s Department (Law and Institutional Reform), M Kulasegaran said that the Legal Affairs Division is looking into enacting the Mental Capacity Act (“
Proposed Act”).
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The Proposed Act will enable individuals to prepare ahead for the management of their affairs in the event they become mentally incapacitated, by appointing individuals or entities chosen by the individuals themselves to look after their affairs.
This will fill a critical void in Malaysia as the Mental Health Act 2001 allows the Court to establish a committee or committees to look after the affairs and estate of a mentally disordered person only after the person has become mentally disordered. Similarly, a power of attorney executed by a donor to appoint a person to administer his affairs in the event of the donor’s mental incapacity is revoked under the Powers of Attorney Act 1949 upon the donor becoming mentally disordered or mentally unsound (unless, arguably, the power of attorney is given for valuable consideration and expressed to be irrevocable).
Several jurisdictions have already introduced such legislation. For example, England and Singapore have done so more than a decade ago.
2 It is high time that Malaysia introduces a similar law.
While such legislation will certainly be welcomed, work on the Proposed Act is still at its initial stages and no time frame has been set for the Proposed Act to be tabled before the Malaysian Parliament. According to the Deputy Minister, the Government will discuss the proposal with stakeholders and a policy paper will be tabled to the Malaysian Cabinet for approval before the drafting of the Proposed Act commences. The Deputy Minister has expressed hope that the policy paper can be tabled to the Cabinet within this year.
Alert by Jesy Ooi (Partner) of the Private Wealth Management Practice of Skrine.