Getting guardianship for an adult

Dear Mrs Macaulay, My father-in-law has recently become confused a lot and has had to move in with us. He is not fully understanding his needs for general health care, eating regularly, or paying his bills. What are the steps we need to take so we can get him to a doctor for treatment, and take care of his finances or any other legal needs?

Thank you for your letter about a very painful and onerous position for some relatives of persons whose mental faculties are failing or have failed them to such an extent that they can no longer conduct the affairs of their daily lives. They’re sometimes unable to see to their own welfare, even about their health, eating regularly or the paying their bills, as you have mentioned.

You have asked what steps you (I guess by this you mean you and your spouse) can take to get your father-in-law to a doctor for treatment and to take care of his finances or other legal needs.   I must say that you have been very remiss in not stating what relationship your spouse has with your father-in-law.  Is your spouse a daughter or son?  Are there other siblings?  Is your spouse the eldest child?  If not, where is the eldest and/or any other older child than your spouse?

Let me now try to answer your question about the steps which can be taken by one of your father-in-law’s relatives.    These persons are named in the Mental Health Act 1999, in the legal order of preference.  An attorney will be needed by the family to apply for and obtain the necessary orders.

The application must be made by a close relative or relatives, as it can be by one or more.  “Relative” is defined in the Mental Health Act, in Section 3 (1) as meaning:- (a) husband or wife; (b) son or daughter; (c) father; (d) mother; (e) brother or sister; (f) grandparent; (g) grandchild; (h) uncle or aunt; (i) nephew or niece.  Then Section 3(3) provides that “nearest relative” means husband or wife, but where there is neither of these persons, then any of the persons listed in Sec. 3(1) should be used in order of preference as listed, who is a surviving relative for the time being, and the preference should be that of the whole blood over and above surviving relatives of the half-blood, and the eldest or older of such relatives. The issue of the sex of the person is irrelevant, as either would do.  The point is, the closer the relation and being of the whole blood, the more important.  If there is no nearest relative, then the application should be made by the attorney-general.

The application, if being filed in the Supreme Court, should be done by a Fixed Date Claim Form, which must be supported by affidavits. The first must be of the applicant or applicants stating the relationship with the ‘patient relative’, and the facts of mental failure, and the adverse effect on his daily life, health, personal hygiene, intake of food, and inability to handle his affairs, which caused them to make the affidavit and any necessary explanations which would clarify the situation for the judge hearing the application.

There must also be other supporting affidavits which must support the applicants’ assertions of the relationship between he/she/them and the patient, and their own experience with the failure of your father-in-law’s mental faculties and inability to handle his life and his affairs.  And most important, an affidavit must exhibit the full medical report from a qualified medical specialist which must satisfy the court that the patient is suffering from a mental disorder which has caused him to be unable to manage any and all aspects of his own affairs.

The Fixed Date Claim Form which is filed must state what the applicant is asking the court to declare, or the specific orders required for them to be able to take charge of and manage all the patient’s affairs.  So the court must be asked to declare your father-in-law as incapable of managing his affairs, and that it should appoint the applicants, or only one or two of them, as guardian(s) to his estate. And the specific orders should grant the necessary powers to the appointed guardians, be they very wide or limited to some specific powers only, for them to be able to deal with his maintenance and act for his benefit.   The application should be filed pursuant to section 29 of the Mental Health Act.

So you and your spouse should get a lawyer to prepare the Fixed Date Claim Form and the supporting affidavits for your spouse (if they fall within the list of relatives I have listed from Section 3(1) of the Act) and for the other witnesses. Your spouse must get their father to his medical general practitioner, and if he has none, to your spouse’s doctor,  or any other, who should then arrange for a qualified and experienced specialist consultant of dementia/Alzheimer’s to examine him and prepare the necessary medical report  which the Act requires for the satisfaction of the court, to rule on the medical and mental condition of your father-in-law, and make the declarations and necessary orders.

Once the medical report is done, your spouse should retain an attorney-at-law, and having made a copy to keep, take the original and a copy of the father’s birth certificate to the lawyer and give  instructions for action to start, and make a full and detailed statement of facts, and hand over the original copy of the medical report. This will enable the lawyer to commence drafting and preparing the claim form and supporting affidavits.

If your father-in-law’s condition warrants urgent action by the court, your spouse should ask the lawyer to act and prepare the Fixed Date Claim Form and supporting affidavits and other documents, and to also prepare an Affidavit of Urgency, so the application can be quickly given a hearing date to be heard and disposed of quickly. Remember, all such expenses can be defrayed from your father-in-law’s funds.

Remember, as you are just an “in-law”, you do not fall within the categories of person who are relatives and who can apply to be appointed a guardian to the impaired person. It is your spouse who can, as a child of the impaired person, make such an application.

I hope that I have clarified the position for you and your spouse.  It is best in these circumstances to act as quickly as possible, as deterioration can occur very quickly .

I wish you and your spouse the very best in this difficult caring endeavour.

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.