Legal explainer: How to manage the affairs of individuals who are not mentally fit

Editor's note: In this piece, Faruq Abbas, MCIArb UK, examines the ineligible model for managing the affairs of mentally unfit individuals and the protections disposable nether the Lagos State Mental Health Law, 2019.

There are respective instances wherever an idiosyncratic who was antecedently medically acceptable abruptly becomes mentally unfit owed to a wellness situation oregon substance abuse. In specified situations, it is not uncommon for definite relatives who person entree to the individual’s assets to instrumentality undue vantage of their presumption to the detriment of the idiosyncratic and their different relatives oregon beneficiaries.

Indeed, we person been progressive successful cases wherever a adjacent comparative took undue vantage of an individual’s aesculapian information to transfer their assets to 3rd parties portion claiming that the idiosyncratic had sold these assets during their unwellness oregon lifetime.

Anyone medically certified arsenic mentally challenged shall beryllium entitled to extortion nether the Lagos State Mental Health Law regarding each their affairs. Photo credit: Krisanapong Detraphiphat
Source: Getty Images

Drawing from my acquisition moving connected matters involving the absorption of the affairs of individuals who are mentally unfit and matters regarding disputes arising from the absorption of a deceased person's estate, I felt it pertinent to constitute this abbreviated article. My nonsubjective is to springiness readers a summary of the process for assuming absorption of the affairs of an idiosyncratic who is mentally unfit and incapable to negociate their idiosyncratic affairs.

Who is simply a mentally challenged person?

Section 1 of the Lagos State Mental Health Law, 2019 defines a “mentally challenged person” arsenic a idiosyncratic with a information of the caput successful which determination is simply a clinically important disturbance of intelligence oregon behaviour functioning associated with distress oregon interference of regular beingness and manifesting arsenic disturbance of speech, perception, mood, thought, volition, predisposition oregon different cognitive functions to specified grade arsenic to beryllium considered pathological but excludes societal deviance without idiosyncratic dysfunction.

The aforesaid conception of the instrumentality goes further to specify “mental disability” arsenic impairments, enactment limitations, of an idiosyncratic and participatory restrictions denoting dysfunctional aspects of enactment betwixt an idiosyncratic and the individual’s environment.

Furthermore, the instrumentality defines “mental challenge” arsenic immoderate illness oregon information affecting the encephalon that influences the mode a idiosyncratic thinks, feels, behaves oregon relates to others and to his oregon her surroundings.

A reappraisal of the terminologies defined supra shows that determination is simply a wide volition by the lawmakers to guarantee that anyone suffering from immoderate signifier of intelligence disablement oregon situation is not taken vantage of by their relatives oregon 3rd parties.

Protection for a mentally challenged person

Anyone medically certified arsenic mentally challenged shall beryllium entitled to extortion nether the Lagos State Mental Health Law regarding each their affairs. Section 63 of the Lagos State Mental Health Law, 2019, provides arsenic follows:

“A mentally challenged idiosyncratic who is incapable to negociate idiosyncratic affairs owed to intelligence upset shall beryllium protected successful matters of finances, business, occupation, marriage, the close to attraction of choice, testamentary capableness and different ineligible issues for the payment of that person.”

There person been cases of unauthorised transfers of shares and misappropriation of properties during periods of incapacity. Photo credit: Luis Alvarez, Halfpoint Images
Source: Getty Images

The ineligible extortion fixed to individuals with intelligence challenges who are incapable to negociate their idiosyncratic affairs is precise significant. Indeed, we person observed unfortunate instances wherever adjacent relatives of specified individuals person exploited their vulnerabilities by changing the login credentials for their online banking, concern accounts, and notification alerts. Additionally, determination person been cases of unauthorised transfers of shares and misappropriation of properties during periods of incapacity.

It is instructive to enactment that the specified beingness of a intelligence situation does not automatically warrant a household member’s petition to beryllium appointed arsenic a ineligible guardian, arsenic respective individuals with intelligence challenges can inactive negociate their idiosyncratic affairs effectively. Section 63 of the Lagos State Mental Health Law, 2019, recognises this presumption by qualifying the class of mentally challenged persons entitled to extortion nether the instrumentality arsenic those who are “unable to negociate idiosyncratic affairs owed to intelligence disorder.”

Who tin use to beryllium a mentally challenged person's ineligible guardian?

Section 64 (1) of the Lagos State Mental Health Law 2019 provides that either a household subordinate oregon a aesculapian societal idiosyncratic whitethorn use to the tribunal to name a guardian for a patient. However, the bid of penchant wherever a household subordinate is to beryllium appointed arsenic the ineligible guardian is arsenic follows:

(a) The spouse, if any, unless permanently separated from the diligent oregon has deserted oregon has been deserted by the patient. (b) Son oregon girl implicit the property of eighteen (18) years. (c) Either genitor by communal consent; and (d) A idiosyncratic appointed by a Court to correspond the patient.

How to use to beryllium a mentally challenged person's guardian

A suit to name a ineligible guardian for a diligent shall beryllium commenced astatine the High Court of Lagos State done an originating exertion brought pursuant to the applicable provisions of the Lagos State Mental Health Law 2019. The exertion volition beryllium supported by an affidavit deposed by the idiosyncratic seeking to beryllium appointed arsenic the patient's ineligible guardian, on with a written address. To summation the likelihood of securing the court’s order, it is indispensable to see the pursuing documents arsenic annexures to the supporting affidavit:

a. A papers verifying the narration betwixt the projected guardian and the patient. b. Medical documents from the infirmary oregon rehabilitation centre confirming the patient’s presumption arsenic being medically challenged and incapable to negociate their idiosyncratic affairs. c. Documents confirming the roles the projected guardian has played successful the patient’s beingness earlier their intelligence incapacity. d. Documents detailing the projected guardian’s engagement successful the patient’s beingness aft their intelligence situation was established. e. Documents detailing the carnal fitness, intelligence fitness, fiscal lasting and motivation lasting of the projected guardian. f. Written consent from different household members endorsing the applicant's assignment arsenic the patient’s ineligible guardian. g. Documents justifying the request for the assignment of a ineligible guardian. h. Any different applicable papers oregon accusation pertaining to the patient’s information and the guardian’s interest.

Although the exertion for the assignment of a ineligible guardian tin beryllium brought ex parte successful definite circumstances, it is important to enactment that the exertion indispensable beryllium made connected announcement successful cases wherever determination whitethorn beryllium household disputes, specified arsenic wherever the diligent has aggregate wives oregon children from antithetic women oregon wherever determination is simply a part amongst the patient’s children.

Conclusion

In galore cases, the authorities of being mentally challenged is usually temporary. However, if the patient’s loved ones bash not decently negociate these situations, determination is simply a hazard that unscrupulous relatives oregon spouses whitethorn exploit their positions to marque irreversible decisions regarding the patient’s assets to the detriment of the different beneficiaries of the patient.

Therefore, it is indispensable to attack the assignment of a ineligible guardian with cautious information and adherence to the provisions of the instrumentality successful bid to safeguard the patient’s rights, dignity and assets.

Disclaimer: It should beryllium noted that this nonfiction is for wide accusation lone and is not offered arsenic proposal connected immoderate peculiar matter, whether legal, procedural, oregon otherwise. If you person immoderate questions astir the issues raised successful this article, delight get successful interaction with the writer astatine [email protected].

Faruq Abbas is the Managing Partner of Abdu-Salaam Abbas & Co., with implicit 15 years of acquisition successful quality solution and alternate quality resolution. Appointed arsenic a Notary Public for Nigeria successful 2022, helium specialises successful commercialized litigation, household law, labour law, spot law, and indebtedness recovery.

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Proofreading by Nkem Ikeke, transcript exertion astatine Legit.ng.

Source: Legit.ng