In recent weeks you may have heard the epitaph “Free Britney” referring to the beleaguered American pop singer Britney Spears. In the United States, she is currently challenging a court-appointed conservatorship, which has controlled her career and finances since 2008 to date after a public mental health breakdown. Generally, a conservatorship can be defined as a U.S legal concept governed by state law whereby a court appoints a person or organization called a conservator to care for another person, who is deemed incapable of caring for themselves or their financial affairs.
While the term conservatorship is not referenced in our local legislation, under the laws of Trinidad and Tobago, under the Mental Health Act Chapter 28:02, (“the Act”) the Court can take certain actions pursuant to an application by a public officer or next of kin and appoint a person or persons to exercise control over the property and affairs of a patient. A Court can also make an order appointing the applicant or any other person the ‘committee’ of a patient’s property.
Under the Act, a Judge may, with respect to the property and affairs of a patient, take action which he may consider necessary or expedient for the maintenance or other benefit of the patient or members of his family or both, for making provision for other persons or purposes for whom or which the patient might be expected to provide if he were not suffering from mental disorder or generally for administering the patient’s property and affairs.
Who is a patient?
Ordinarily, a person may give another person or entity, a “power of attorney” which can be limited or wide in scope to make decisions and act on that person’s behalf. A power of attorney is a legal document and for it to be enforceable in law, the person giving the power of attorney must have the requisite mental capacity to do so.
When we are referencing applications under the Mental Health Act, however, we are speaking of a ‘patient’ defined as “person who is suffering from or is suspected to be suffering from mental illness or who is mentally subnormal”. Such a person does not possess the requisite legal capacity. “Mentally ill” or “mentally ill person” has been defined in the Act and means” a person who is suffering from such a disorder of mind that he requires care, supervision, treatment and control, or any of them, for his own protection or welfare or for the protection or welfare of others.”
When are such applications usually made?
Typically applications under the Act are made in respect of incapacitated individuals who are unable to manage or administer their property or affairs as a result of untreatable mental illness, brain injuries or advanced dementia of Alzheimer’s Disease.
In applications for the distribution of a deceased’s estate, this type of application may also be sought where a patient’s consent is required.
Who can make this application?
The Act empowers a ‘public officer’ or ‘next of kin’ to make the application.
Under the Civil Proceedings Rules 1998 as amended (“the CPR”) the Chief State Solicitor’s Department is the entity dedicated to assist the court with respect to applications under the Act.
Section 2 of the Act provides that ‘next of kin’ means in the order of priority: (a) spouse; (b) child; (c) parent; (d) grandparent; or e) brother / sister.
What will an applicant need to prove?
Applications must be supported by evidence that patient is incapable, by reason of mental disorder, of managing and administering his property and affairs. With respect to applications involving control over a patient’s property, what is required includes a certificate by the Psychiatric Hospital Director, a duly authorised medical officer or qualified psychiatrist to the effect that the patient is suffering from a mental disorder as a result of which he is incapable of managing and administering his property and affairs. The applicant must also provide to the Court a detailed description of the patient’s property and its value.
What orders can the Court make?
The Court has very wide powers under the Act and can grant orders for example, authorising the committee to conduct all transactions in relation to the real and personal property of the patient, giving consent on behalf of the patient in relation any property, receiving and utilising any interest or other benefit in relation to the property of the patient for the patient’s benefit during his lifetime, taking and defending such legal proceedings for and on behalf of the patient and executing such documents on behalf of the patient.
The Court may require the person appointed as the committee of the patient’s property to file periodic statements of the status of the patient’s estate, periodic medical certificates stating the mental condition of the patient and if necessary the probable duration of the disorder. Upon receipt of these documents, the Court can decide whether to continue with or discharge the committee of the patient’s property appointed.
Family disputes over the assets of patients are not uncommon in Trinidad and Tobago. Unfortunately, instances of fraud have arisen in some cases, and for this reason, the Court is generally very careful to grant such orders paying particular attention to the benefit and welfare of the patient, such as the purchase of medication or nursing care.
There has been significant debate about the Britney Spears case ranging from her alleged capacity to the nature of control exercised over her affairs. As this saga unfolds, it should be noted that in Trinidad and Tobago any order made pursuant to the Act is not meant to be oppressive, but rather may be a life-saving tool in caring for a beloved relative.