Tackling Mental Incapacity; What Are Your Options?

There are situations in the day-to-day transactions where one may want to buy property (car, land, etc) or even take a loan from a person/family and in the process of negotiations the interested party is informed that a party to the transaction has dementia, an alcoholic or any other form of mental incapacity. In some cases, some unscrupulous parties may proceed to have the person with the mental incapacity sign a power of attorney and believe with this document they are able to transact on behalf of the person with the mental incapacity. While it is normal to want to transact in property owned by the person with the mental incapacity largely due to the need to raise funds for their care, there are other people who take advantage of this mental incapacity to exploit property belonging to the incapacitated person for their own selfish reasons.

It is for this reason that in Kenya we have the Mental Health Act which provides for the actions to be taken in the event that a family member lacks mental capacity to safeguard their property and well-being. Capacity is one of the terms that is used to denote the ability of a person to enter into a legally binding contract. We have several parameters that are used to define capacity including but not limited to age and mental state. Age is easier to ascertain as in most instances it is a question of fact, but when it comes to mental capacity, it is subject to determination by a medical professional.

Mental capacity relates to a person’s understanding of the nature of a document or transaction and the consequence of their decisions and/or signature in relation to the transaction. Mental incapacity under this law relates to instances where a person cannot understand the nature of the transactions and the consequences of their actions, due to either a mental disorder, mental illness, brain damage or any other reason.

Legally, a mentally incapacitated person cannot handle their property, enter into contracts or deal, in any other manner whatsoever, with their property and affairs. The law then allows another person to be appointed to manage the property and affairs of this person.

MANAGEMENT ORDER – MENTAL HEALTH ACT

A management order is the authority granted by Court, allowing someone else to govern the property of a mentally incapacitated person who cannot manage their property by themselves and also make decisions as to their wellbeing. Therefore when one goes to court they need to be specific on what orders they are seeking. The court can grant management orders over the property of the mentally incapacitated person as well as guardianship orders over the mentally incapacitated person.

How do you obtain orders under the Mental Health Act?

Any person seeking these orders from the Court applies through a Petition, asking for either the order to manage the property of the mentally incapacitated person or both the management orders and guardianship orders.

The Petition is accompanied by:

a) A supporting affidavit. The affidavit sets out the facts proving the patient is mentally incapacitated and incapable of handling their property;

b) Copies of identification documents of the mentally incapacitated person and the Petitioner(s);

c) Proof of relationship between the Petitioner(s) and the mentally incapacitated person;

i) A spouse – a marriage certificate

ii) A child – a birth certificate to prove parenthood

d) Proof of the mental incapacity or unsoundness of mind suffered by the person. – This can be shown by providing a doctor’s report outlining the mental incapacitation; and

e) A written consent from any other interested parties granting the petitioner(s) the authority to apply for the orders from Court.

The Court, when granting these orders, gives the manager any general or specific powers to handle the affairs of the mentally incapacitated person, depending on the nature of property the person has. The manager hence acts as a trustee for the mentally incapacitated person.

Can the Petition be opposed?

if the person who is alleged to be mentally incapacitated is of sound mind, then they can oppose such a petition. Similarly, if a person lacks authority to apply for the orders, then that person’s petition can be opposed. Last but not least, if any other person feels that they should be included in the petition they can oppose and ask for joint management and guardianship of the mentally incapacitated person and their estate.

Seek Management and Guardianship orders at the earliest

Management and guardianship orders provide a good avenue for protecting the property of a mentally incapacitated person. They give the Courts a chance to look into the legibility of the Petitioner(s) in handling the affairs of the mentally incapacitated person. These orders should therefore be sought before any dealings on the property of a mentally incapacitated person, in order to protect their interests. They also protect third parties when dealing with the property of the mentally incapacitated person.

The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Contact us for legal advice or other professional advice in relation to any particular matters you or your organisation may have.