Koya & Company Advocates will help you file a suit for guardianship of a loved one with an impairing mental illness that affects their ability to care for themselves.

What is Guardianship under the Mental Health Act of Kenya?

Often times families may be faced with situations where their loved ones face mental health challenges such that their cognition and psychology is impaired to a point where they cannot take care of themselves or their property and it is in their best interests for a family member or close relative to take over management of their estate and custody of this family member who is mentally unwell. In such a case, the law allows for courts to issue orders of guardianship (also called conservatorship in other jurisdictions) over the person as well as make orders on the management of their assets such that their assets are safeguarded and used for the benefit of maintaining the mentally ill person.

Are all Mental Illnesses enough to put a person under the Mental Health Act Guardianship?

Not all mental illnesses reach the statutory threshold of impairing one’s ability to take care of one self; it is only where it can be shown that said person needs a guardian and manager to help manage their estate. Examples of serious illnesses that may warrant these orders include senile dementia.

Thus it is important to obtain an official diagnosis for your relative in the nature of the threshold of the Mental Health Act from a licensed medical practitioner in Kenya where you feel your unwell relative may be in need of guardianship and/or estate managerial orders to be issued by the Court.

What is the Procedure to Apply to the Court for Guardianship Orders under the Mental Health Act?

Applications for guardianship of the mentally disordered can be brought under the Mental Health Act and will usually be accompanied by an affidavit by the applicant setting out the reasons for seeking guardianship under the Act; a description of the illness and how much it has impaired the patient; description of the unwell person’s assets and the relationship of the applicant to the unwell person that makes them a fit person to be granted the order of guardianship/ and or managerial powers over the assets of the mentally unwell person.

There will be a hearing and the court may seek to directly see the patient to make its determination that the person’s illness is of such magnitude as to warrant the court to intervene in the affairs of such an adult and grant the orders of guardianship.

In addition to the order of guardianship and management of the estate of the mentally disordered person, the applicant may seek an allowance if necessary to be paid out of the estate of the unwell person and a reimbursement of costs incurred in maintenance of this person.

Where can I find the Rules under Kenyan Law on Managing the Assets of the Mentally Ill Person?

These rules are stipulated under the Mental Health Act and include for instance, requirement to seek court approval when selling off any assets of this person; rules on leasing out houses or land of the mentally unwell person; accounts and records to be kept etc. The rules seek to protect the assets of the mentally unwell person from being misused by the person that has a guardianship or trustee role over the estate of the sick person.

What is Impact of the Guardianship Order?

Once the court issues such orders in favour of the applicant, this applicant is responsible for the custody, welfare and maintenance of the mentally unwell person and can make decisions on investing or use of assets of the sick person to the benefit of the patient as well as any dependants as may be directed by the court.

What Type of Decision can a Person with Guardianship make with respect to the Mentally Unwell Person?

The guardian is entrusted with care of this person and can make decisions pertaining to inter alia:

• Treatment of the person;
• Property of the mentally unwell person;
• Therapy of the person;
• Maintenance of the person;
• Living arrangements of the person;
• Support to be provided to dependants of the mentally unwell person;
• Social welfare of the person;
• Income generating activities of the person including work.

Can I use a Mental Health Guardianship Order obtained in Kenya in other Jurisdictions?

This depends on the particular laws of the other jurisdiction, for instance if the unwell person owns property abroad and you would like an order to be able to safeguard this assets, you can obtain the order in Kenya and many jurisdictions may allow you to bring the order to its courts and have the Kenyan order adopted as a binding court order of that other foreign jurisdiction thus allowing you to competently safeguard the assets of your relative in this other country.

How can I take Guardianship of Elderly Parents?

Elderly parents with impairing mental illnesses may be put under a guardianship if they suffer mental illness that affects their ability to care for themselves; however, the mere fact that someone is old or is diagnosed with any mental illness that does not impair their ability to take care of themselves, does not necessarily bring them within the operation of the Mental Health Act. The applicant under the Mental Health Act must show such an impairing mental health condition as is provided for under the Mental Health Act of Kenya.