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October 24, 2018

Legal protection for people with mental challenges

We are born with our mental faculties running in a normal state until we die. However, it is not unusual to come across instances where a family member finds themselves in a state that they can no longer run their day to day activities like the rest of us.

There are situations when the person who has been providing for the family becomes the dependent overnight. They depend on the persons they were supporting for their food, shelter, cleaning and all their needs.

 Article 3 and 20 of the constitution puts us under an obligation to protect and promote the rights of these special people.

Article 54 of the constitution protects persons living with mental disabilities from discrimination. Section 27 guarantees them the right to protection before the law.

Article 43 guarantees all of us a right to the highest attainable standard of health.

Article 45 provides that the family is the natural and fundamental unit of society and that it is entitled to the protection of the state.

Part VIII of the Children's Act also provides for appointment of guardians for children.

 It is no wonder we have the Mental Health Act that takes care of all persons suffering from mental disorders. Under Section 26 of, (1) the court may make orders—

(a) for the management of the estate of any person suffering from mental disorder; and

(b) for the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person.

(2) Where there is no known relative or other suitable person, the court may order that the Public Trustee be appointed manager of the estate and guardian of any such person.

(3) Whereupon inquiry it is found that the person to whom the inquiry relates is suffering from mental disorder to such an extent as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others or likely to act in a manner offensive to public decency, the court may make such orders as it may think fit for the management of the estate of such person, including proper provision for his maintenance and for the maintenance of such members of his family as are dependent upon him for maintenance, but need not, in such case, make any order as to the custody of the person suffering from mental disorder.

 “Person suffering from mental disorder” means a person who has been found to be so suffering under this act and includes a person diagnosed as a psychopathic person with mental illness and person suffering from mental impairment due to alcohol or substance abuse.

 Section 27 then sets out the powers of manager in respect of estate. It stipulates that,

(1) Where a manager is appointed under this part, the court may order that the manager shall have such general or special powers for the management of the estate as the court considers necessary and proper regard being had to the nature

of the property whether movable or immovable, of which the estate may consist. However, the manager so appointed shall not, without the special permission ofthe court—

(a) mortgage, charge or transfer by sale, gift, surrender, exchange or otherwise any immovable property of which the estate may consist;

(b) lease any such property for a term exceeding five years; or

(c) invest in any securities other than those authorised by section 4 of the Trustee Act (Cap. 167);

(ii) no manager may invest any funds belonging to the estate of which he is manager in any company or undertaking in which he himself has an interest, nor on the purchase of immovable property under the authority of paragraph (d) of section 4(1) of the Trustee Act without the prior consent of the court.

(2) Where the person appointed to be manager of an estate or guardian of a person under this part is unwilling to act gratuitously, the court may fix such allowance to be paid out of the estate of the person in respect of whom the manager or guardian has been appointed as the court may think fit. We should not abandon people who suffer from mental challenges. Let us embrace them and give them a happy life.

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