Sherry-Ann McGregor

At the end of last week's article, I indicated that I would respond to the question on what happens to property if the owner becomes mentally ill.

The answer lies in the provisions of the Mental Health Act, 1997, which states that Supreme Court and the Resident Magistrate's Courts may exercise jurisdiction over the affairs and property of mentally ill persons.

Section 29 of the act provides for an application to be made to the Resident Magistrate's or Supreme Court by the next of kin of a mentally ill person, or the attorney general to give directions or make orders regarding a person who is incapable of administering his property and affairs by reason of mental disorder.

Court may give directions

What is clear from the act is that this person, who is described as a patient, does not lose his right to own property. Instead, with the court's intervention, arrangements may be made to ensure that the patient's property is managed in a manner which is beneficial to his or her interests. In that regard, the court is entitled to give directions or make orders to:

Transfer, vest, sell, lease, rent or exchange the property

Acquire property in the name of or on behalf of the patient

Settle property by way of gift

Execute a will on behalf of the patient.

Other possible orders

As the act contemplates the management of the patient's affairs, as well as his or her property, the Court may also make orders to:

Carry on, sell, lease or rent the patient's business, trade or profession

Dissolve a partnership of which the patient is a partner

Fulfill any of the patient's contractual obligations

Pay any debts incurred by the patient

Continue or institute any legal proceeding on behalf of the patient

Exercise any power of attorney vested in the patient

Handle all financial affairs of the patient.

The provisions of this act are similar to the English Mental Health Act. However, some additional provisions under the English Act are worthwhile considering for inclusion in our local act:

The English Act provides for the reimbursement to any person handling the affairs of the mental patient of expenses incurred on the patient's behalf. The general maintenance of the patient and of other members of the patient's family for whom he or she is obliged to provide.

Any will executed on behalf of a patient must be signed by the person authorised to do so in the name of the patient, as well as in his own name, and for the official seal of the relevant court to be affixed to the will.

The English Act also makes reference to the Wills Act and clearly states that the will is valid if it is executed in accordance with the provisions of the Mental Health Act.

The special court, called, The Court of Protection, is established to handle applications under the act.

Sherry-Ann McGregor is a partner and mediator with the firm Nunes, Scholefield, DeLeon & Co. Send feedback and questions to: lawsofeve@yahoo.com or Lifestyle@gleanerjm.com.