PERSONS OF UNSOUND MIND OR MENTAL ILLNESS
BY NATUKUNDA DEAN.
LEGAL ISSUES:
1. Who is a person who has a mental illness?
2. Who can administer the estate of a person of unsound mind?
3. What are the remedies available to a person seeking to administer the estate of another of unsound mind?
4. What is the procedure, forum and documents necessary?
LAW APPLICABLE:
1. The Constitution of the Republic of Uganda, 1995 as amended.
2. CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12)
3. Mental Health Act, 2018.
4. The Mental Health Act (Commencement) Instrument No. 25 of 2021.
5. The Magistrates Court Act, Cap. 16
6. Succession Act, Cap 162.
7. The Judicature (Court Fees) Rules.
8. Principles for the protection of persons with mental illness and improvement of mental health care.
9. Adopted by General Assembly resolution 46/119 of 17th December 1991 Office of the High Commissioner for Human Rights.
10. Case law.
WHO IS A PERSON WITH MENTAL ILLNESS?
Section 2 of the Mental Health Act 2018 defines a “Person with Mental illness” is a person who is proven, at a particular time by a mental health practitioner to have mental illness at that particular time and includes a patient. The person must be proven to have a mental illness by a medical practitioner – Refer to Re: RHONA KIBUKA MUSOKE (A PERSON OF UNSOUND MIND) AND IN RE: AN APPLICATION FOR THE ADMINISTRATION OF HER ESTATE BY NORAH LWANGA AND 2 ORS (HCT-00- FD-MC 1 OF 2009).
The same section defines “mental illness” to mean a diagnosis of a mental health condition in terms of accepted diagnostic criteria made by a mental health practitioner or medical practitioner authorized to make such diagnosis, mental health conditions include but are not limited to depression, bipolar, anxiety disorders, schizophrenia and addictive behavior due to alcohol/substance abuse among others.
It is important to note that the Mental Health Act under SECTION 77 REPEALED THE MENTAL TREATMENT ACT CAP 279 AND THE ADMINISTRATION OF ESTATES OF PERSONS OF UNSOUND MIND ACT CAP 155.
Section 2 of the Mental Health Act 2018 defines a “Mental Health Practitioner” to mean a Psychiatrist, a registered psychiatry nurse, a psychiatry clinical officer, a mental health social worker and a clinical psychologist.
Section 55(1) of the Mental Health Act 2018 provides that a determination of the mental health status of a person shall be carried out, where it is required for proceedings before a court of law or for any other official purpose.
Therefore, the determination of who is of unsound mind shall only be carried out by a psychiatrist or where a psychiatrist is not available, by a senior mental health practitioner as envisaged in Section 55(2) of the Mental Health Act 2018.
It has to be noted that the determination shall be based on only the factors which are exclusively relevant to the mental health status of the patient and not any social, economic, cultural religious or other factors as Section 55(3) of the Mental Health Act 2018 stipulates.
In the case of ABIRIA EMMANEL V. AFEMA RICHARD (HIGH COURT MISCELLANEOUS APPLICATION 0053 OF 2015). Mubiru J opined
‘A person is deemed to be of unsound mind for purposes of these proceedings if he or she is afflicted by a total or partial defect of reason or the perturbation thereof, to such a degree that he or she is incapable of managing himself or herself or his or her affairs’’
Conclusively therefore under Section 55 of the Mental Health Act 2018 and the decision of Justice Mubiru in ASERU JOYCE AJJU VS ANJOYO AGNES HCMA 001 OF 2016, an application of this kind ought to be supported by some medical evidence in the nature of a certificate of some doctor, who has had a reasonable opportunity of seeing the condition of the alleged to be of unsound mind.
WHO CAN ADMINISTER THE ESTATE OF A PERSON OF UNSOUND MIND?
Principle No. 3 of the UN General Assembly, Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, 17 December 1991, A/RES/46/119, provides that all persons with mental illness have a right to be protected from economic, sexual and other exploitation whether physical or other abuse and degrading treatment.
Section 51 (2) of the Mental Health Act, 2019 provides for performance of duties and rights against a person of Unsound mind to be in the best interest of the patient.
Section 61(3) of the mental Health Act, 2019 provides that a person who can be appointed a manager of the estate of a person of unsound mind shall be a relative, a concerned person, a mental health practitioner or a lawyer.
The person must first be adjudged to be a person of unsound mind by a magistrate court or must be a person detained under Section 113 and 177 of the Magistrate court before the high court can determine the suitability of the applicant to manage the estate of such a person, the high court would rely on such findings of the Magistrate before appointing a suitable person to manage the estate of such a person.
Section 60(3) (b) of the Mental Health Act 2018 provides that a person with mental illness may be stopped from managing his or her affairs by court on application by a relative or a concerned person determines that the person is not able to manage his or her affairs.
Section 2 of the act defines a relative to mean a spouse, parent, guardian of a person with mental illness whether by marriage or relationship established by law.
Section 62 of the Mental Health Act 2019 provides that where a person with mental illness is not capable of managing his or her court shall appoint a personal representative to manage the estate of the person with mental illness to act in the best interest of the person with mental illness.
INTERIM REMEDIES.
1. CAVEAT BY THE SPOUSE / CAVEAT BY THE REGISTRAR OF TITLES.
As an interim remedy, the person for instance a spouse intending to manage the estate may begin by lodging a Caveat on the registered properties of the unsound person so as to forbid the latter from disposing them carelessly.
The caveat may be lodged under Section 139 Registration Title Act or move the Registrar of Titles to lodge the Caveat under Section 170 (a) Registration Title Act.
2. TREATMENT OF THE PERSON.
Section 20 provides for Treatment and care of outpatients at primary health centers
Section 22 provides for the Emergency admission and treatment. A person qualifies for emergency admission and treatment where that person has mental illness and as a result of which he or she is likely to inflict serious harm on himself or herself or on another person or has behavior which may lead to a serious financial loss to himself or herself, a lasting or irreparable harm to an important personal relationship held with another person as a result of damage to the reputation of the person, serious damage to the reputation of the person or damage to property. A person who qualifies for emergency admission and treatment shall be given immediate care and treatment at a health unit or a mental health unit.
Section 46 provides for the use of special treatment options. Special treatment options such as electroconvulsive therapy, seclusion, psychosurgery and bodily restraint shall be provided only after exhaustion of all other treatment options. These procedures shall be applied under the authorization and supervision of a psychiatrist.
LONG TERM REMEDY.
Section 60 (1) of the Mental Health Act, 2019 provides that persons with mental illness have the right to enjoy the capacity on equal basis with others in all aspects of life. This includes the right to manage their property.
The general rule on management of the property is provided for under Section 60 (2) of the Mental Health Act that provides that a person with a mental illness has the right to manage his or her affairs. However, in this case, Modesta therefore has two options:
1. BEING APPOINTED AS THE PERSONAL REPRESENTATIVE OF THE MENTAL ILLNESS PATIENT.
A personal representative is defined under Section 2 of the Mental Health Act, 2019 to mean a person appointed in writing by a person with mental illness to act on his or her behalf or a person appointed by court to act on behalf of a person with mental illness, where the person with mental illness has the capacity to execute a particular task.
Under Section 61(1), the person with mental illness is insulated with the right to appoint a personal representative for the purpose of managing his estate. Under Subsection 3, the person may be a relative, a concerned person, mental health practitioner or a lawyer appointed through advance directive when the person with mental illness is capable to make the appointment. Under Subsection 2, this person is required to make decisions taking into account the best interests of the person with the mental Illness.
2. APPOINTMENT OF PERSONAL REPRESENTATIVE BY COURT.
This option stems from the exception to the general rule under Section 60(2). Under Section 60(3) of the Mental Health Act, a person with mental illness may be stopped from managing his affairs where; a. Court on the application of a relative or concerned person determines that the person is not able to manage his or her affairs.
In ASERU JOYCE AJJU VS ANJOYO AGNES HCMA 001 OF 2016, Justice Mubiru noted that the test of ability to manage affairs is to be required of the reasonable man. Therefore, a man that cannot manage his affairs is a person of unsound mind.
Under section 62(1) of the Mental Health Act, where the court has declared that the person with a mental illness is unable to manage their estate, they have not appointed a personal representative, it shall appoint a suitable relative to be his or her personal representative.
Under subsection 2, the personal representative shall manage the estate of the person with mental illness or be the guardian of the person with mental illness Under Section 63(1) of the Mental Health Act, the court shall grant the personal representative general or specific powers, to manage the state of the person with mental illness.
In The Matter of KHALID LATIFF (Person of Unsound Mind) (Civil Miscellaneous Application No.026 Of 2017), the applicant for example sought that the respondent be adjudged mentally ill so that she is appointed the manager to his estate with powers to dispose of the property of his estate only for purposes of paying debts due to crane bank and DFCU bank.
3. APPOINTMENT OF PERSONAL REPRESENTATIVE BY THE BOARD.
A person with mental illness may be stopped from managing his or her affairs where- (a) the Uganda Mental Health Advisory Board established under SECTIONS 4 AND 5 OF THE MENTAL HEALTH ACT, 2018, orders that the person with mental illness is not able to manage his or her affairs after it is established by two mental health practitioners, Appointed by The Board.
Section 60(7) of the Mental Health Act provides that where an order that a person with mental illness is not capable of managing his affairs has been pronounced, this decision shall be reviewed by the board in the next meeting until the order is revoked.
PROCEDURE, FORUM AND DOCUMENTS.
Section 55 of the Mental Health Act 2019 provides for such determination to be carried out where it is required for proceedings before court of law and for any other official purpose.
Section 55 (2) of the Mental Health Act 2019 provides that such determination shall only be carried out by a psychiatrist or where a psychiatrist is not available, by a senior mental health practitioner.
With the report from the board, then an applicant may go to court making an application to be granted the powers to administer the property of such person with a mental illness.
Court has the duty to ascertain that for the applicant to be found to be a suitable manager of the patient’s estate, they should satisfy court that they are capable of preventing the potential abuse, neglect and exploitation of the respondent. They should be capable of taking control over the respondent’s estate, his personal welfare and make decisions in the best interest of the respondent and their dependents.
The procedure is by a notice of motion Supported by an affidavit from the applicant as per Order 52 rule 1 of the civil procedure rules. The hearing shall be as for applications under the same Act.
Section 62 of the Mental Health Act provides for the appointment of a personal representative of person with mental illness.
Section 62(2) of the Act provides that a personal representative shall:
a) Manage the estate of the person with mental illness and:
b) Be a guardian of the person with mental illness and of the dependents of that person.
Section 63 of the Act provides for the responsibilities of personal representative appointed by court’
(1) Court shall grant a personal representative general or specific power, to manage the estate of the person with mental illnesses,
(2) Notwithstanding subsection (1), a personal representative shall not, without the special permission of the court-
a) Mortgage, charge or transfer, by sale, gift, surrender ‘exchange, or by any other means, mortgage, charge or transfer any movable or immovable property of the person with mental illness;
b) Lease any property of the person with mental illness for a term exceeding five years; or
c) Invest funds of the person with mental illness in any security except a security authorized by law’.
A personal representative shall not invest any funds belonging to the person with mental illness in any company or undertaking in which the personal representative has an interest in or purchase immovable property for the person with mental illness without the authority of court.
NOTABLE CASES ON MENTALLY ILL PERSONS AND THEIR ESTATES.
1. In the matter of an application for managing the estate of person presumed to be mentally ill by Birungi (Misc Cause 2 of 2023) [2023] UGHCCD 161 (31 May 2023).
2. In Re: Estate of Kiggundu James (Person of unsound mind) (Miscellaneous Cause 18 of 2015) [2016] UGHCFD 5 (31 March 2016).
3. In The matter of An Application By Anyijukire For Appointment As Manager of Estate of A Person of Unsound Mind [2023] UGHC 119 (1 December 2023).
4. In Re: Rhona Kibuka Musoke, (A Person of Unsound Mind) & In Re: An Application for The Administration Of Her Estate By Norah Lwanga & 2 Ors (HCT-00-FD-MC-00012009) [2009] UGHC 20 (28 May 2009).
5. Ssebuliba Kiwanuka v Musisi Kiwanuka (MISCELLANEOUS CAUSE NO. 249 OF 2019) [2019] UGHCCD 276 (27 September 2019).
MISSING PERSONS’ ESTATE.
WHO IS A MISSING PERSON?
Section 1 (f) of the Estates of Missing Person’s Management Act Cap 159, defines a missing person who disappears from Uganda without making provision for the administration of his or her estate and investigations have shown that his or her whereabouts are unknown.
WHO CAN APPLY TO MANAGE ESTATES?
Section 2 (1) of the Estates of Missing Persons Management Act, is to the effect that where a person in the act referred to as a “missing person” disappears from Uganda without making provision for the admin of their estate on the maintenance of his/her dependent relatives if any and is not heard of within 6months, any relative of the missing person may with the concurrence of the family of the missing person, apply the court to be granted an order to manage his estate but the court may, if it considers it necessary or desirable, grant an order to more than one relative to manage the estate jointly.
Section 2(c) defines a family member to include a parent, grand parent, uncle, first cousin, child, grandchild, wife’s or husband of a missing person.
Section 1(2) postulates that an order of management of an estate a missing person shall not be granted to any person under the age of 21 years.
PROCEDURES, FORUM AND DOCUMENTS NECESSARY.
Filing of application.
Section 4 of the Act provides that an application for grant of an order under the act must be made subject to such modification as may be necessary in the same form as an application for grant of letters of administration.
Section 246 of the Succession Act provides that an application for Letters of Administration shall be made by petition.
Section 247 of the Succession Act postulates that a petition for Letters of Administration must in all cases be subscribed by the petitioner and his/her advocates, if any and must be verified by the petitioner.
The application for administration of estate of missing person is made by way of petition, verified by the petitioner. Jurisdiction This is stipulated under Section 3 of the Act:
• M.G 2 where the total value of the estate does not exceed 10,000 shillings.
• M.G. 1 where the total value of the estate exceeds 10,000 shillings but does not exceed 20 million.
• CM where value of the estate exceeds 20 million but not above 50 million.
WHAT ARE THE POWERS AND DUTIES OF A MANAGER OF THE ESTATE OF A MISSING PERSON?
Section 1 (d) defines a manager to mean any person to whom an order to manage an estate of a missing person is granted under the act.
1. Under Section 8(1) a manager has general and special power for the management of the estate of the missing person as appears to court to be necessary and stipulated in the order of the appointment or any subsequent order.
2. Section 8 (2) bars any manager without the permission of court from:
a) Mortgaging, charging or transferring by will, sale or gift, intervolves, surrender, exchange or otherwise any immovable property of a missing person.
b) Lease any such property for term exceeding three years.
c) Invest any property of a missing person in any securities other than those authorized by the trustee’s act.
3. Under Section 11(1), the manager has a duty to collect all debts owing to the estate by issuing a notice to the debtor in writing, showing the amount due and to have it settled within the notice period. The notice should be verified with an affidavit.
4. Under Section 13 (1), the manager has the power to appoint an agent for the efficient and economic management of the estate, on such terms and remuneration as she considers reasonable in the circumstances.
5. Furnish court with inventory and annual accounts as per Section 15 (1) Person can by petition the accuracy of any inventory.
DUTIES OF THE MANAGER
1. Under Section 12(3), they have a duty to clear the outstanding insurance premiums and pay the regular premiums within 3 months from date of appointment or else the policy, if any will lapse.
2. Section 15(1) obliges a manager to furnish an inventory within 6 months from their date of appointment or on such other time as the court may order and also furnish an account annually.
NOTABLE CASES ON THE MISSING PERSONS.
1. In the Matter of an Application for presumption of death of Suliaman (missing person since 1971) (Miscellaneous Application 267 of 2023) [2023] UGHC 184 (18 November 2023)
2. In the Matter of An Application by Kyoma for an Order of Presumption of death, A person Missing since 1990 (Misc Cause 13 of 2022) [2022] UGHCFD 19 (16 September 2022).
3. In the Matter of an Application by Kyoma for an Order of Presumption of Death of Mulindwa (missing person since 1990) (Miscellaneous Cause 13 of 2022) [2022] UGHCFD 17 (16 September 2022).
COMPILED BY DEAN NATUKUNDA.
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