An Asian Approach to Mental Capacity for Wills and Lasting Powers

Abstract

This chapter addresses the tension associated with applying English capacity law in the predominantly Chinese cultural contexts of Hong Kong and Singapore. Some judges in these Asian jurisdictions interpret even the most basic elements of the law to take into account the value of family protection. Some judges are committed to respecting the autonomous preferences of individuals in much the same way as their English counterparts. The tension in the court’s approach mirrors that in Hong Kong and Singaporean societies, where a predominantly Chinese culture is constantly evolving in response to western values. This chapter considers this tension with respect to wills and LPAs, arguing that respect for autonomy requires outcome- based considerations to be relevant only to demonstrate the coherence of the decision-making process.