Affairs of the elderly

If packaged attractively enough persons may be convinced to swallow the bitterest of pills. This would be a principle that those who draft and pass legislation would do well to consider.

I recently had a client who reacted with extreme horror when advised that in order to manage the affairs of a parent suffering from the effects of advancing age, an order would need to be sought from the Supreme Court and the manner in which that order could be obtained would be an application under the Mental Health Act. She assured me continually that the parent was “not mad” and I assured her continually that the application had nothing to do with mad people, but to no avail.

Section 17 of the Mental Health Act, Cap. 45 states that “[w]here the High Court, after considering medical evidence, is satisfied that a person is incapable, by reason of mental disorder, of managing and administering his property and affairs, the court may exercise the powers conferred on it [by the act]”. Mental disorder is not limited to psychiatric illness as we know it but includes “any disorder or disability of mind” such as senile dementia, Alzheimer’s and other like diseases.

The court’s broad powers are set out in section 18 including the giving of directions for the maintenance of the patient and where there are minor children or other dependents, the continued maintenance of those persons as well. Since the court cannot be expected to personally oversee the affairs of all individuals for whom recourse may be sought under the act, the general approach is to appoint a receiver pursuant to section 22 and that person will administer the affairs of the patient in accordance with the order of the court and will report to the court.

Further instructions or clarification may also be sought from the court in attempting to give effect to the terms of the order. I cannot stress enough that the court will not grant such power to random persons with the most tenuous of connections to the patient and will generally award priority first to spouses, then children and so on and only to persons of substance for reasons which should be obvious.

It must also be stressed that the court will not simply accept the word of the applicant that the patient is suffering from mental disorder simply because of what is at stake. The court under section 25 has the power to appoint a medical practitioner with “special knowledge and experience in cases of mental disorder” and an attorney-at-law of at least seven years standing to investigate the “matters relating to the capacity of the patient to manage and administer his property and affairs or otherwise relating to the exercise in relation to him, of the functions of the court”.

The investigation consists of the interviewing by these professionals of the patient in private; and a medical examination if considered necessary along with the production and examination of the patient’s medical records. At the conclusion of the investigation a report is made and disclosed only to the court and any other persons directly authorised by the court to receive it so that the patient’s privacy is maintained. Dissemination of such a report to unauthorised persons is a criminal offence punishable by a fine of $500 and/or imprisonment of up to three months.

The powers outlined in section 19 are wide and varied and include the control and management of property; sale, acquisition, mortgage, exchange or other disposition of property; gift of property to dependents to secure their continued maintenance as per section 18; execution of a will on the patient’s behalf (which only has effect in relation to property in Barbados); carrying on of any business trade or profession; dissolution of partnerships; carrying out of the terms of any contract entered into by the patient; conduct of legal proceedings relating to dissolution or nullity of marriage and judicial separation; payment of debts; exercise of any powers (e.g. guardianship) conferred on the patient.

It would perhaps be a good idea to introduce legislation relating to living wills and trusts which would allow persons to give directions for their own care and other matters dealt with in this article in the case of serious mental or physical incapacity. It would also help to separate these proceedings from those dealing with persons committed to psychiatric institutions for reasons which should also be obvious. We are “behind the eight ball” in this area.

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