What Must the Donee(s) Consider When Determining the Best Interests of the Donor?

Published on 8th March, 2018 by Benjamin Li Yong Le

The Donee(s) must act in the best interests of the donor. The Donee(s) making the determination must consider all the relevant circumstances as outlined in this article.

What must the Donee(s) consider when determining the best interests of the Donor?

Donee(s) must act in the best interests of the donor.

In determining what is in a person’s best interests, the Donee(s) must not make it merely on the basis of:-

(a) the Donor’s age or appearance; or (b) a condition of the Donor, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

The Donee(s) making the determination must consider all the relevant circumstances including:-

  1. He must consider —
  • whether it is likely that the person will at some time have capacity in relation to the matter in question; and
  • if it appears likely that he will, when that is likely to be.

  1. He must, so far as is reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

  2. Where the determination relates to life-sustaining treatment, he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

  3. Where the determination relates to the giving, refusal or revocation of —

  • appropriate consent of the person concerned under the Human Biomedical Research Act 2015, the person must take into account such matters, considerations and procedures as may be prescribed under Part 3 of that Act; or
  • consent of the person concerned under any written law relating to a clinical trial, the person must take into account such matters, considerations and procedures as may be prescribed in such written law.
  1. Where the determination relates to the disposition or settlement of the person’s property, he must be motivated by a desire to ensure, so far as is reasonably practicable, that the person’s property is preserved for application towards the costs of the person’s maintenance during his life.
  2. He must consider, so far as is reasonably ascertainable —
  • the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity);
  • the beliefs and values that would be likely to influence his decision if he had capacity; and
  • the other factors that he would be likely to consider if he were able to do so.
  1. He must take into account, if it is practicable and appropriate to consult them, the views of —
  • anyone named by the person as someone to be consulted on the matter in question or on matters of that kind;
  • anyone engaged in caring for the person or interested in his welfare;
  • any donee of a lasting power of attorney granted by the person; and
  • any deputy appointed for the person by the court.

Benjamin Li Yong Le

About the Author

Benjamin Li Yong Le (“Ben”) is an Advocate & Solicitor of the Supreme Court of Singapore. Ben is currently running his own boutique corporate and commercial law firm under the name and style of L’avocat Law LLC.