Dear Mrs Macaulay,

My father has been non-verbal for the past four years, after two strokes. There’s a situation going on with his bank account where he was the sole account holder. No one in our family, including my mother, his wife of over 50 years, can get any information about the account. This is an account that my father’s pension is currently still being deposited to, and as his family we are not allowed to check in and make sure things are good.

Please can you help guide me as to what and how my family can proceed in this situation.

It is clear from your letter that your father is not able to deal with his own affairs. I can understand yours, your mother’s, and other family members’ deep concerns and frustrations.

Let me say at once that an application must be made to the Supreme Court to declare that your mother, or you and your mother, are your father’s legal guardians. You would ask for an order that you both can conduct your father’s financial affairs, and in particular operate his bank account(s), pay his bills, and sell and transfer his personal and real properties.

You state that your father has been ill, and you and your mother and other family members are obviously taking care of him. I am also certain that your father was and is probably still under the care of a doctor who can write a medical report about his inability to speak, and in any other way indicate his decisions, instructions or thoughts about any matter by reason of the physical effect of the strokes he suffered.

I have mentioned the doctor first because the medical report must clearly state that your father’s condition is a physical incapacity and not a mental incapacity, because this would determine which kind of application your mother solely or jointly with you can make to the Supreme Court of Judicature of Jamaica to file and seek the appropriate declarations and/or orders to ensure that your father’s bank account can be accessed by you and her. I suggest that you act with your mother as I assume that your mother is over 70 years of age and I am not sure about the state of her own physical health and ability.

You see, if your father’s incapacity is mental, for example, Alzheimer’s disease, then the application must be made under the Mental Health Act. With the little you have told me, I assume that his incapacity is physical and not mental, therefore the application must be made to the Supreme Court, but pursuant to the exercise of the court’s inherent jurisdiction.

You and your mother should therefore secure the services of a lawyer to take full statements from you both about your father’s situation and provide the details of his bank account and all and every personal and real property which he may own. When such applications are made, you must ensure that all his assets are included, which you and your mother would need a legal order to be able to deal with. You must also take with you certified copies of your mother’s marriage and birth certificate and your own birth certificate. You must also give the details of your father’s bank and account, as this must specifically be referred to in the orders made by the court, since the bank had refused you and your mother access to the account. In other words, tell the lawyer everything, so that no further application needs to be made to give you the authority to act in any regard. In this respect, making medical and health decisions must be added to your application, that his debts can be paid, and that you and your mother can rent, or sell and transfer any real and personal property your father may own.

You should arrange for your father’s doctor to prepare his medical report, stating the reason he is non-verbal and his or her prognosis about this for the future.

You should try and retain and instruct a lawyer as quickly as you can and once the lawyer has all the information and the necessary documents, he or she can prepare the application and file with it an affidavit of urgency, because it has been over four years already. You and your mother will have to have your affidavits done also, which should contain details of your father’s strokes and the expenses that must be met for his daily necessities and his medical treatments. It is also prudent for you to identify a person who has known your parents and family for many years and can state in a supporting affidavit details of your father’s strokes and of his non-verbal state and condition, and that you and your mother have been caring for him and without a doubt would continue to do so.

Only the declaration that you and your mother are your father’s legal guardians and the consequential orders I have referred to, and possibly more that your lawyer would add since you would provide them with more details, will suffice.

All the very best.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women’s and children’s rights advocate. Send questions via e-mail to
allwoman@jamaicaobserver.com
; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.