What will happen to your property should you become incapacitated?
When it comes to property, we rarely talk about mental health. Perhaps we will touch on how your space affects your mental health or obsessive, compulsive disorders that impact how you treat your home.
When it comes to property, we rarely talk about mental health. Perhaps we will touch on how your space affects your mental health or obsessive, compulsive disorders that impact how you treat your home.
But let’s stop for a minute and think about how we would want our property treated if our mental health was compromised.
What if, in your sunset years, dementia robbed you of your memories and daily function?
Do you trust the people around you to take care of what you worked so hard to build? What if, in a state of impulsivity, you decided to sell all your properties at a throw-away price, would you wish to be stopped? If you have income-generating properties and you depend on them for your daily needs and children’s school fees, what would happen to your properties and your family’s wellbeing if you were admitted to hospital?
Worrying figures
Property ownership equals wealth, and yes, there is a strong link between wealth and mental health problems, as shown by disorders such as Sudden Wealth Syndrome and Chrematophobia. But that’s not what you should be worried about if you are a property owner.
In 2021, the World Health Organization estimated that 1 in every 4 Kenyans that seek medical help is struggling with a mental health condition. Simply put, a quarter of the population is struggling mentally. And that one in four people could be you or a close loved one.
Khira Geoffery, a Medical Psychologist, Researcher and Programs Manager, Basic Needs, Basic Rights Kenya, an NGO that intervenes in Mental Health Advocacy, says that the most prevalent mental condition in Kenya is clinical depression.
In the years he has been in the mental health field, he observes that the condition goes hand in hand with substance abuse disorder, which is also a common disorder in the country with worrying figures.
“Substance abuse is being used as a coping mechanism in most cases though other stressful situations in the country such as the high cost of living also contribute to depression,” says Khira, adding that though statistically, women between the ages of 16 and 24 are three times more likely to experience mental health issues compared to men, in the Kenyan and African context, women seek professional help more than men and are not struggling as much.
Khira Geoffery, is a Medical Psychologist, Researcher and Programs Manager at Basic Needs, Basic Rights Kenya.
“Men are socialised to toughen up and bottle their issues while women turn to social groups like chamas in the event of a mental crisis”.
Among the older population, Khira notes that the predisposition is mainly with disorders caused by degenerative brain functions like dementia, and Alzheimer’s disease. Depression and psychosis are also possible if an older person continues to use substances and their body is unable to take them.
Costly treatment
Unfortunately, as a country, we grapple with many challenges that make it difficult to deal with mental health cases efficiently, hence the need to take precautionary measures where necessary. Khira notes that first, “we lack enough personnel to deal with mental health conditions- for a headache you can easily get medication over the counter and if you have malaria you rush to a dispensary and get treated, but with mental health, access to healthcare is a real challenge.
Treatment is complicated because you can only get medication through a psychiatrist or a psychiatrist nurse, if you cannot access either of the two, you resort to consulting a therapist who may be incapable of handling some cases. The cost of mental health services is also very high.
For 10 recommended sessions of therapy, the least you will pay is Sh30, 000, while serious conditions that require the attention of a psychiatrist cost more to treat. To make things worse, mental illnesses are misunderstood and those showing clear symptoms are often labelled, ridiculed and isolated. When things get worse, some families will either associate symptoms with witchcraft or seek help when it’s almost too late,” says Khira.
Though most mental health issues are treatable, some impair decision-making, self-awareness and ability to make sound decisions. And this is where the law comes in to protect property owners who are mentally ill. It is easy to be taken advantage of by unscrupulous buyers, or even be dispossessed by onlookers when one is struggling with a condition.
Mental health is just an everyday ability to do your work, deal with conflict, laugh, cry and still operate functionally. The same way we invest in a good diet for physical health is the same way families need to figure out their action plan for mental health
In other cases, conditions such as bipolar disorder present the risk of impulsivity and risk-taking which could lead one to make the wrong decisions concerning their property. Unfortunately, when one is a breadwinner or the head of a family, such decisions not only affect them but their dependents as well.
What the law says
Joan Mukoya, a family advocate and a managing partner with Koya and Advocates, points out that it is advisable to consider giving someone you trust the power of attorney while you are still mentally healthy just in case you develop complications that affect your memory or decision-making in the future.
Power of Attorney allows this person to make decisions and act on your behalf in regard to your properties and could apply to a specific asset or could be general.
That said, The Mental Health Act Cap 248 protects people struggling with mental conditions and their properties. The Act, which was amended in 2022, outlines guidelines on how to handle mental health patients in a dignified manner while upholding their rights.
Part 12 (XII) of the amendment act covers the “Care and Administration of Property of Persons with Mental Illness” and section 26 (1) reads “an application for an order of the management and administration of the estate of a person with mental illness may be made to the court by a supporter of the person with mental illness or a representative of the person where the person has not appointed a supporter.”
A supporter in legal terms is someone given the mandate to make decisions on behalf of a mentally ill person. This mandate is given by the sick person and it has to be in writing, with the ill person’s signature.
The decision to appoint someone as a supporter can only be made when the person is still of sound mind or ability to make sound decisions even if they are unwell.
In the absence of such a supporter, a relative, such as a sibling, a spouse or an adult child of someone with a mental condition can apply to manage the estate.
Managing, however, does not mean owning, it simply means making decisions in relation to the property, furthermore, there are conditions attached to this.
“For a court to grant such an order, the person must be diagnosed with a mental disorder that makes them incapable of making decisions about their property. The doctor determines the severity of the conditions and the diagnosis and its impact on the person’s day-to-day life.”
Joan Mukoya is a family advocate and a managing partner at Koya and Advocates.
The request to manage the person’s estate is made to the court through a lawyer. The application is supposed to be submitted with an affidavit that outlines why the representative is making such a request, and a detailed account of the patient’s properties as well as their relatives. Copies of treatment and hospital admission letters should also be attached to demonstrate that the person is truly unwell.
To protect people with mental conditions, Mukoya says the court often requests the person in question to appear physically if possible for an assessment to be made.
The assessment is supposed to ascertain whether the applicant’s claims are true, as well as the severity of the condition. If the person is unable to appear before the court physically, virtual tools such as video may be used to make that assessment.
When they get treated
If permission to manage the estate of a mentally ill person is granted, the court makes a gazette notice and members of the public are given 14 days to object. If there is no objection, the manager has a set of responsibilities to fulfil and rules to adhere to.
“The manager is supposed to do everything for the benefit of the sick person and every year they are supposed to file an account of what came in, what went out, and what he is doing to recover debts or repay them. He files this with the court and the public trustee. If the estate they are managing is big and time-consuming, they can apply to be paid to maintain the estate,” says Mukoya.
The manager is, however, not allowed to mortgage, take a loan (charge), sell or gift the immovable property without the court’s approval. Approval to sell or mortgage may only be made if the sick person has debts that need to be cleared, they need money for their maintenance or treatment or they have dependants who have no other source of income.
If in the future the sick person recovers, Mukoya explains that the law considers the fact that mental illness is not a permanent state and either the manager or the property owner can apply for a reversal of the permission.
“You apply a notice of motion to ask for prayers that the order of transfer be revoked. The court will set a hearing to determine whether this is necessary,” though some of these conditions are recurring and a reversal may be unnecessary, Khira, the medical psychologist above, notes that there is hope in treatment if it is consistent and the right experts are involved.
“There is a continuum in treatment - in a case where the illness is severe and the person has completely lost touch with reality, it’s advisable to have a supporter managing their property, but then again, if this person is able to go back to their normal self after treatment, then they should be given a chance to take control of their property. In many cases, families fail to restore the same level of trust - the patient is treated with suspicion and labelled. Such treatment is hurtful to the patient and it is wrong because treatment works”.
Khira advises families to seek a prognosis from a psychiatrist where necessary to determine the way forward. Mukoya adds that there is a need for courts to also provide a threshold when it comes to mental illnesses and the severity that warrants a supporter to manage a sick person’s property because sometimes, a diagnosis is used by relatives to bully and control those struggling with mental conditions.
But before it gets to the crisis stage where one applies for guardianship and property management orders, Khira advises families to be more intentional in securing each member’s mental health first to prevent severe conditions.
“We need improved levels of mental awareness and to stop enabling stigmas. Mental health is just an everyday ability to do your work, deal with conflict, laugh, cry and still operate functionally. The same way we invest in a good diet for physical health is the same way families need to figure out their action plan for mental health. If you notice a loved one is struggling, seek treatment as early as possible, don’t wait for the situation to escalate. Families should normalise seeing mental health practitioners. We also need to practice healthy lifestyles like working out, eating healthy, spending time in nature and building healthy relationships”.
