Guardians and Managers for Persons with Mental illness under the Mental Health Act, CAP 248
This Article would like to address the following issues:
Whether there is a difference between a Guardian and a Manager. Whether there is a difference between the roles of Guardians and Managers.
Whether there is a difference between a Guardian and a Manager
The term Manager is defined in section 2 of the Mental Health Act (Hereinafter “The Act”) as:
“means any person appointed under Part XII”
The term Guardian is however not defined in the Act. Considering the definition given for a manager, it could also be said that it is not to be defined. This is because the definition is quite vague hence, one would need to consider the way the words are used in the Act to ascertain the meaning ascribed to the words in the context of the Act.
The words are used quite often in the Act however, section 27(2) of the Act provides a guide to how the terms are
used within the context of the Act. It stipulates that:
“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, in the circumstances of the case, the court may think fit.”
The title of Part XII has also referred to the same manner of categorisations of the two words.The Black law dictionary (4 th edition) defines an estate as:
“Designates the property (real or personal) in which one has a right or interest; the subject-matter of ownership; the corpus of property.”
This article assumes that the Act when referring to persons, refers to natural persons. In conclusion, a manager deals with matters concerning the estate of the person with mental illness, and a guardian deals with the person with the care and welfare of the person with mental illness.
Whether there is a difference in the roles of Guardians and Managers
Considering the approach of the Act in using the two words, it is logical to state that there is a difference in powers and responsibilities. In a general sense, the difference would be that a manager deals with matters about the estate, and the guardian deals with matters regarding the person and his/her care. The roles of both the guardians and managers are not elaborately stated as is it seems that they are expected to conduct themselves properly, however, the courts have supervisory jurisdiction over them.
Powers and Responsibilities of Guardians
1.Power to submit a person who is below the age of 16 years to a voluntary mental hospital. (Sec.10 of the Act)
2.With the court’s permission, can require that they be paid for their service. (Sec 27(2) of the Act)
3.Power to approach the court, through a petition, on any matter connected to the person suffering mental illness. (Sec 28(1) of the Act)
4.Other powers and roles seem can be conferred to them with the court’s discretion.
Powers and Responsibilities of Managers
1. General or Special powers that the court may deem fit. (Sec 27(1) of the Act)
2. They are considered trustees (Sec 27(4) of the Act)
3.The manager shall not engage in the following activities subject to courts approval:(Sec27(1) of the Act) mortgage, charge or transfer by sale, gift, surrender, exchange, or otherwise any immovable property of which the estate may consist. lease any such property for a term exceeding five years. invest in any securities other than those authorized by section 4 of the Trustee Act. (Cap. 167)
4. With courts, permission can require that they be paid for their service. (Sec 27(2) of the Act)
5. Power to approach the court, through application in chambers, for any question that may arise out of the management of the estate. (Sec28(2) of the Act)
6. Power to approach the court, through a petition, on any matter connected to the person suffering mental illness’ estate. (Sec 28(1) of the Act).
7. Power to, on behalf of the person suffering from a mental disorder, execute and conveyance and instrument relating to any sale, mortgage, or any other disposition of such person’s estate as the court may order, and any other conveyance or other instruments. (Sec 32 of the Act)
8. Responsibility to assess and prepare an inventory (including but not limited to debts owed by or due to the person) for the estate of the person with mental illness. (Sec 32 of the Act)
9. Responsibility to prepare an account for the property annually *(Three months before 31 December) * 1 (Sec 33 of the Act)
10. Responsibility to appear before the court to explain the accounts prepared in case of any contestation of its accuracy. (Sec 33 of the Act)
11. Responsibility to release all property and accounts in his/her possession upon termination or removal. (Sec 34 and 35 of the Act)
The Judiciary has also considered the matter in several cases. In re VML (2015) eKLR, the court in discussing the relationship between the manager and the mentally ill person stated that it is that of Trust. They hold the estate on behalf and in benefit of cestui que trust.
In re NMK (2017) eKLR, the court enumerated three main factors it was guided by in the appointment of a guardian and a manager which are:
1. Medical evidence assists the court to conclude that a person has a mental disorder.
2. A person is suitable to be a manager or a guardian.
3. The manager will act to the benefit of cestui que trust, to the court’s satisfaction.
In conclusion, the managers and guardians have different roles due to the prescription the Act ascribes to each of them i.e., the manager's roles are to the estate while guardian’s roles are to the person with mental illness. The care of persons with mental illness and their estate is important as it allows for their dignity to be respected. It gives them a chance to receive treatment with peace of mind and increase their chances of recovery; if not then, they may continue with life with the mental illness in a dignified manner. The courts, in their supervisory role, have a great responsibility to ensure the same is facilitated.