How to Manage the Affairs of Individuals Who Are Not Mentally Fit
Editor's note: In this piece, Faruq Abbas, MCIArb UK, examines the legal framework for managing the affairs of mentally unfit individuals and the protections available under the Lagos State Mental Health Law, 2019.
There are several instances where an individual who was previously medically fit suddenly becomes mentally unfit due to a health challenge or substance abuse. In such situations, it is not uncommon for certain relatives who have access to the individual’s assets to take undue advantage of their position to the detriment of the individual and their other relatives or beneficiaries. Indeed, we have been involved in cases where a close relative took undue advantage of an individual’s medical condition to transfer their assets to third parties while claiming that the individual had sold these assets during their illness or lifetime.
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Drawing from my experience working on matters involving the management of the affairs of individuals who are mentally unfit and matters regarding disputes arising from the management of a deceased person's estate, I felt it pertinent to write this short article. My objective is to give readers a summary of the procedure for assuming management of the affairs of an individual who is mentally unfit and unable to manage their personal affairs.
Who is a Mentally Challenged Person?
Section 1 of the Lagos State Mental Health Law, 2019 defines a “mentally challenged person” as a person with a condition of the mind in which there is a clinically significant disturbance of mental or behaviour functioning associated with distress or interference of daily life and manifesting as disturbance of speech, perception, mood, thought, volition, orientation or other cognitive functions to such degree as to be considered pathological but excludes social deviance without personal dysfunction.
The same section of the law goes further to define “mental disability” as impairments, activity limitations, of an individual and participatory restrictions denoting dysfunctional aspects of interaction between an individual and the individual’s environment.
Furthermore, the law defines “mental challenge” as any disease or condition affecting the brain that influences the way a person thinks, feels, behaves or relates to others and to his or her surroundings.
A review of the terminologies defined above shows that there is a clear intention by the lawmakers to ensure that anyone suffering from any form of mental disability or challenge is not taken advantage of by their relatives or third parties.
Protection for a Mentally Challenged Person
Anyone medically certified as mentally challenged shall be entitled to protection under the Lagos State Mental Health Law regarding all their affairs. Section 63 of the Lagos State Mental Health Law, 2019, provides as follows:
“A mentally challenged person who is unable to manage personal affairs due to mental disorder shall be protected in matters of finances, business, occupation, marriage, the right to treatment of choice, testamentary capacity and other legal issues for the benefit of that person.”
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The legal protection given to individuals with mental challenges who are unable to manage their personal affairs is very significant. Indeed, we have observed unfortunate instances where close relatives of such individuals have exploited their vulnerabilities by changing the login credentials for their online banking, investment accounts, and notification alerts. Additionally, there have been cases of unauthorised transfers of shares and misappropriation of properties during periods of incapacity.
It is instructive to note that the mere presence of a mental challenge does not automatically justify a family member’s request to be appointed as a legal guardian, as several individuals with mental challenges can still manage their personal affairs effectively. Section 63 of the Lagos State Mental Health Law, 2019 recognises this position by qualifying the category of mentally challenged persons entitled to protection under the law as those who are “unable to manage personal affairs due to mental disorder.”
Who Can Apply to the Court to be Appointed as a Legal Guardian of a Mentally Challenged Person?
Section 64 (1) of the Lagos State Mental Health Law 2019 provides that either a family member or a medical social worker may apply to the court to appoint a guardian for a patient. However, the order of preference where a family member is to be appointed as the legal guardian is as follows:
(a) The spouse, if any, unless permanently separated from the patient or has deserted or has been deserted by the patient. (b) Son or daughter over the age of eighteen (18) years. (c) Either parent by mutual consent; and (d) A person appointed by a Court to represent the patient.
How to Apply to the Court for an Order Appointing a Legal Guardian to a Mentally Challenged Person
A lawsuit to appoint a legal guardian for a patient shall be commenced at the High Court of Lagos State through an originating application brought pursuant to the relevant provisions of the Lagos State Mental Health Law 2019. The application will be supported with an affidavit deposed by the person seeking to be appointed as the patient's legal guardian, along with a written address. To increase the likelihood of securing the court’s order, it is essential to include the following documents as annexures to the supporting affidavit:
a. A document verifying the relationship between the proposed guardian and the patient. b. Medical documents from the hospital or rehabilitation centre confirming the patient’s status as being medically challenged and unable to manage their personal affairs. c. Documents confirming the roles the proposed guardian has played in the patient’s life before their mental incapacity. d. Documents detailing the proposed guardian’s involvement in the patient’s life after their mental challenge was established. e. Documents detailing the physical fitness, mental fitness, financial standing and moral standing of the proposed guardian. f. Written consent from other family members endorsing the applicant's appointment as the patient’s legal guardian. g. Documents justifying the need for the appointment of a legal guardian. h. Any other relevant document or information pertaining to the patient’s condition and the guardian’s interest.
Although the application for the appointment of a legal guardian can be brought ex parte in certain circumstances, it is important to note that the application must be made on notice in cases where there may be family disputes, such as where the patient has multiple wives or children from different women or where there is a division amongst the patient’s children.
Conclusion
In many cases, the state of being mentally challenged is usually temporary. However, if the patient’s loved ones do not properly manage these situations, there is a risk that unscrupulous relatives or spouses may exploit their positions to make irreversible decisions regarding the patient’s assets to the detriment of the other beneficiaries of the patient. Therefore, it is essential to approach the appointment of a legal guardian with careful consideration and adherence to the provisions of the law in order to safeguard the patient’s rights, dignity and assets.
Disclaimer: It should be noted that this article is for general information only and is not offered as advice on any particular matter, whether legal, procedural, or otherwise. If you have any questions about the issues raised in this article, please get in touch with the author at foa@abdu-salaamabbasandco.com.
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Source: Legit.ng
Ololade Olatimehin (Editorial Assistant) Olatimehin Ololade is a seasoned communications expert with over 7 years of experience, skilled in content creation, team leadership, and strategic communications, with a proven track record of success in driving engagement and growth. Spearheaded editorial operations, earning two promotions within 2 years (Giantability Media Network). Currently an Editorial Assistant at Legit.ng, covering experts' exclusive comments. Contact me at Olatimehin.ololade@corp.legit.ng or +234 802 533 3205.
Faruq Abbas (Legal expert) Faruq Abbas is the Managing Partner of Abdu-Salaam Abbas & Co., with over 15 years of experience in dispute resolution and alternative dispute resolution. Appointed as a Notary Public for Nigeria in 2022, he specializes in commercial litigation, family law, labour law, property law, and debt recovery. A recognized Trademark Agent and arbitrator, he has appeared in notable cases and legal publications. Faruq is a member of esteemed legal organisations and frequently engages in media discussions on political, social, and legal issues.
