ARGUING that Jamaica’s Mental Health Act is “screaming for change” a seasoned family law practitioner says a stipulation in the legislation which treats relatives residing outside Jamaica as “dead”, effectively barring them from assuming guardianship of a relative suffering from any mental disorder, should be the first to be struck out.

Attorney Sherry-Ann McGregor, appearing before the select committee of Parliament deliberating proposals for an Elderly Care and Protection Act on Thursday, made the suggestion while urging legislators to craft specific legislation governing the use of power of attorney to help ease the plight of vulnerable individuals who, for various reasons, are incapacitated and unable to make critical decisions on their own.

According to McGregor, the way Jamaica’s Mental Health Act (1999) is currently structured “presents challenges for practitioners trying to get legal guardians or other competent authorities for individuals with mental disorders”. The trouble, she said, concerns who is defined as a relative under the Act which also does not regard cousins or in-laws as relatives.

“The most critical aspect of all of this is that the person considered nearest relative has to be ordinarily resident in Jamaica to apply under the Mental Health Act to take charge of the affairs of a patient,” she said.

MCGREGOR… the most critical aspect of all of this is that the person considered nearest relative has to be ordinarily resident in Jamaica to apply under the Mental Health Act to take charge of the affairs of a patient

According to McGregor, who is a partner in the law firm Nunes, Scholefield, DeLeon and Co, this has resulted in many cases having to be abandoned.

“This is because the Act specifically says if the relative is overseas, they are ascertained as if dead. If your husband or wife lives outside Jamaica and you have a mental disorder, your husband or wife can’t apply to be your guardian under the Mental Health [Act] and that creates more challenges than any other one. We treat you as if you are dead, we do not even consider you as a potential applicant. It is as if you do not exist,” she pointed out.

She said while the attorney general is named at the end of that list as the last resort in terms of applicants who can go to the courts on behalf of an individual who has no “near relative” residing in Jamaica, this has not worked.

“I have personally tried to get the attorney general to intervene in a situation where there is no near relative in Jamaica and I have not succeeded; so we need to broaden the category of persons who might be able to step in to care for the need of mentally ill patients,” McGregor stated.

She further pointed out that individuals residing overseas who are, ironically, excluded by the Act are oftentimes the ones footing the bills for caring for such relatives.

“When you look at the Mental Health Act as it is currently structured, it is geared towards financial decisions. In most cases the person making the financial decisions is the one who lives overseas so is it wrong to not consider making them the guardian,” she said.

Noting that one other troubling issue is the definition of “patient” under that statute, McGregor said there are cases that have gone as far as the Appeal Court to determine just who is a patient.

“The Mental Health Act only deals with situations where there is mental incompetence that can be diagnosed and does not deal with physical incapacity,” McGregor told the committee.

Furthermore, she said Jamaicans overseas with properties here whose relatives have been appointed guardian and who want to dispose of those properties to help with their care, are conflicted as their guardianship is not recognised by the courts here.

“Attorneys have had to go through varying measures to get this resolved,” she said while calling for a review of the provisions of the Act to widen the category of relatives who can apply for guardianship.

“We can have financial decisions separate from health-care decisions. We need to be able to discharge guardians easily. There needs to be further clarity as to the steps the appropriate State agent needs to take when there is no nearest relative,” she said.

Turning to the issue of the use of power of attorney McGregor expressed concern that Jamaica has no specific legislation concerning the provision but instead relies on the Probate of Deeds Act, which deals with the execution of deeds.

A power of attorney, which is relied on commonly when a donor is overseas or for other reasons unavailable to sign documents, is a formal document. It must clearly describe the donor and donee, state exactly what the power is being given to the individual to do and must be signed by the donor and witnessed by a justice of the peace or other subscribing witness, for example a notary public, and must outline the powers being granted and the duration if necessary. It must then be stamped at the Inland Revenue Department and recorded at the Registrar General’s Department.

McGregor said the provision has its strengths, however “the first thing you need to appreciate is that a power of attorney can only be signed by someone who is mentally competent to give that power. But the big problem is that when a power of attorney has been signed by someone they usually want to be able to rely on it, not only when they are able to carry out the activity themselves… but they would love to think that if, for some reason, they can’t get out of bed or their mental capacity becomes diminished, the power of attorney could be relied on; but unfortunately that’s the time when a power of attorney becomes ineffective”.

“If a power of attorney is signed by a person who has mental capacity at the time of execution but some supervening activity takes place — they got older, develop Alzheimer’s, accident or something like that and they are no long able to make decisions on their own — then unfortunately, the same power of attorney you would hope to be able to rely on becomes legally ineffective,” she explained.

“That, I believe, underscores the big problem we face in Jamaica; we have no legislation governing powers of attorney, we must rely on the common law, and unfortunately a power of attorney signed by someone with mental capacity who subsequently becomes mentally incapacitated that power of attorney no longer has legal effect. That’s a problem,” she said.

According to McGregor, the elderly community is particularly vulnerable.

“The other problem I want to point out is that there are times when, especially as people grow older, the mental capacity diminishes, so they might be very lucid when they wake up in the mornings and as the day wears on they seem to become confused and not aware of where they are, who they are speaking with or generally not aware of the acts they are carrying out, and so we end up with big questions such as if you approach an elderly person today and say sign a document that has some legal effect and then tomorrow morning somebody else approaches them and they seem to be confused, or incapable of making decisions, it gives rise to the question at the time they signed the document yesterday, was it a lucid interval,” she said.

“Those questions have dogged courts for generations because it is very difficult to be able to say definitively that at the time persons signed the document they were mentally competent to do so,” McGregor told the committee.

“In other words, what we need to do is to empower those persons who are still mentally competent so that when they put solutions in place so that somebody can carry out actions on their behalf that that person’s powers continues to be effective, even if the donor becomes mentally incapacitated. That is where we are talking about powers of attorney that endure past the point of mental incapacity, so we will no longer be talking about whether somebody has had a lucid interval,” she stated.

“What we are aiming for is a situation where we say to people, ‘while you are mentally competent put measures in place so that we don’t have to answer any questions about whether you were competent anymore’. The court still has the jurisdiction to question those things but what we are saying is let’s empower people by having legislative support…that outlasts mental capacity,” the attorney added.

The committee, which is almost at the end of its deliberations, was formed following the moving of a private member’s motion by Opposition Senator Dr Floyd Morris in 2021. The motion was approved by the Senate in October 2024. The special select committee, following its deliberations on the scope and details to be included in the legislation, will prepare a report for the Senate’s consideration before it proceeds to Cabinet.