Introduction
Decision making is an important part of our lives. It is through making decisions that we express our individuality and having our decisions acknowledged and acted upon by others. To mention a few, we make decisions relating to matters such as health care, financial affairs and social contracts. The capacity to make such decisions is very closely related to a person’s mental condition. Interestingly, for a legal transaction to be valid the law requires that the parties be able to understand the nature, purpose and consequences of their actions.
Some people cannot make legally effective decisions because they are mentally incapacitated. Mental incapacitation may result from a number of causes such as mental illness, brain injury or diseases including a stroke.
When a person becomes incapable of managing his or her own affairs, especially the administration of his or her estate, it is imperative that someone be legally appointed to assist. In terms of our current legal system no person may manage the affairs of another person without the required authority to do so.
Presently, the legal provisions that may enable one to be appointed to administer the affairs of a person who is found to be incapable of managing his or her own affairs is The Mental Health Act (Chapter 248 of the Laws of Kenya) (the “Act”). Precisely, Section 26 and 28 of the Act.
Obtaining the Management order
The Mental Health Act (Chapter 248 of the Laws of Kenya) (the “Act”) governs the custody and guardianship of patients who are considered mentally incapacitated. The Act gives the Courts powers to grant the following orders:
- Orders for the management of the estate of any person suffering from mental disorder; and
- where the patient is unable to take care of himself, Orders for the guardianship of that person by any near relative or by any other suitable person.
with respect to the process of getting these Orders, the Act prescribes that the application be made by an interested person such as family member in form of a Petition which will be accompanied by a supporting affidavit that sets out the facts and circumstances relied on to show that the person is of unsound mind and incapable of managing his or her affairs. The Petition could request for both orders for management of the patient’s estate and orders for his or her guardianship depending on how quickly and how well the patient recovers from the effects of the cause.
The Petition would be supported by the following documents:
- Copies of Identity Cards of both the Petitioner and the patient;
- A medical certificate or psychiatrist report by a doctor indicating the medical condition and their opinion on the capacity of the subject to handle their affairs;
- Birth certificate of the Petitioner(s) in case they are the children of the patient or Marriage Certificate in case the Petitioner is a spouse of the patient; and
- a written and express authority from the other members (siblings and the other parent) granting the Petitioner(s) the authority to swear the affidavit and apply to be appointed manager(s) of your patient’s affairs.
The Petition can be challenged on numerous grounds such as if:
- one of your siblings or your mother is not agreeable to the Petition or to the proposed Managers;
- someone insists on being enjoined or included in the Petition for appointment as a manager of the estate; or
- any one believes that your dad is not incapacitated and is able to manage his own affairs.
Conclusion
The requirement that a person needs to get authority to manage the estate of a mentally incapacitated person is however not meant to be a punitive measure but should be seen as a measure to protect the mentally ill person’s estate against exploitation.
If you’re considering making such application and would like more guidance on the process, Contact us at praxcy@mmsadvocates.co.ke or kachero@mmsadvocates.co.ke, andrew@mmsadvocates.co.ke
