Peter W Simmonds, Legal Writer

The Mental Health Act provides that the nearest relative or the Attorney General of Jamaica may apply to the Supreme Court - or to the Resident Magistrate's Court, if the value of the estate is $250,000or less - to exercise jurisdiction over the management of the property and affairs of a mentally ill person.

This application may become necessary on sudden mental impairment, for example, when a person is left comatose after an accident, or suffers from a degenerative disease like Alzheimer's or depression.

Definition of patient

Under the act, a 'patient' is a person suffering from or is suspected to be suffering from a mental disorder, defined fairly widely to be a substantial disorder of thought, perception, orientation or memory which grossly impairs a person's behaviour, judgment or capacity to recognise reality or the ability to handle the demands of life.

Mental retardation is also considered a mental disorder.

The 'nearest relative' who may apply to the court for an order for the court to manage the estate of a patient, is firstly the husband or wife of the patient.

If there is no spouse, a son, daughter, father, mother, brother or sister, grandparent, grandchild, uncle or aunt, nephew or niece may apply.

The act, however, disqualifies certain relatives from applying, including those who do not live in Jamaica, and a spouse who is permanently separated from or has deserted the patient.

Given that it is impractical for the court to exercise this jurisdiction itself, the court may appoint one or more relatives to be the Committee of Management of the estate under the Trustees Act.

However, the court must be satisfied that the patient is incapable of managing and administering his own property and affairs. The appropriate medical report of an independent qualified mental health practitioner is therefore required to support the application.

Power of the court

When an application is made, the court has the power to make orders for the benefit of the patient or his dependent. Such orders include the power to transfer, vest, sell, lease, rent or exchange the patient's property; to settle his debts; to fulfill his contractual obligations; to dissolve his partnership; to carry on his business and to make a will on his behalf.

The Committee of Management is therefore a trustee of the estate and affairs of the patient.

As a trustee, the applicant must at any time be able to account for the assets of the estate. Any substantial or rapid depletion in the assets of the estate can result in the order being revoked and the relative who presided over the depletion may be subject to both civil and criminal proceedings.

The power to manage the estate should not to be treated lightly. Two of the powers, mentioned above -the settlement of the patient's property by way of gift; and the execution of a will on behalf of the patient - require elaboration.

Patient's intention

It may be strongly argued that the exercise of these powers should give effect to the intended wishes of the patient. The intention of the patient would, therefore, have to be ascertained when he/she has a lucid period. It is only at this time that the patient would possess the relevant mental capacity.

Note the act does not empower the applicant to write the will of a patient, it only allows the applicant to sign it.

The will should, therefore, be drafted with the appropriate attestation clause to reflect the circumstances under which it is being signed. It would also be best, where the mental capacity of the patient may be an issue, to have the will witnessed by a medical practitioner who has satisfied himself as to the capacity of the patient to make a will and who has made a record of the findings of his examination before the will is executed.

Similarly, the applicant would not be empowered to arbitrarily give away, by gift, the property of the patient to anyone, unless he could prove that such a gift was in fact the intention of the patient.

Peter Simmonds is with the firm DunnCox Attorneys-at-law, Kingston. Email: peter.simmonds@dunncox.com