A Guide to the Mental Health (Amendment) Act, 2022
Introduction
Mental illness does not only affect those who suffer from it directly; it impacts families and caregivers who must navigate the practical realities of caring for a loved one who can no longer manage their own affairs. In Kenya, the law provides a mechanism through which families can formalize arrangements for the care of persons suffering from mental disorders.
For most of the life of the Mental Health Act, Cap. 248, that mechanism worked in one direction only. Once a person was found to be suffering from a mental disorder, the law assumed that someone else needed to step in and decide things on their behalf. The Mental Health (Amendment) Act, 2022 introduced a different starting point: the Supporter—a person chosen by someone with mental illness to help carry out their own will and preference, rather than to replace it.
This article considers what the Mental Health Act, Cap. 248, as amended by the Mental Health (Amendment) Act, 2022 (referred to as “the Act”) actually provides, and how Kenyan Courts have interpreted and applied it. It explains who a Supporter is, how a Supporter is appointed, and the legal process through which the care, management, and administration of the property of persons with mental illness may be entrusted to another person.
The Right to a Supporter
The Act provides that "a person with mental illness may appoint a person to act as that person’s Supporter for the purposes of this Act." This right exists independently of any Court process. A person does not need to be admitted to a facility or be the subject of any petition before choosing someone they trust to fill this role.
Section 3I (2) of the Act requires that the appointment be formalized. It reads that "A person with mental illness shall in appointing a Supporter, enter into a supportive decision-making agreement with the proposed Supporter." The agreement must be in writing and is only valid if, at the time it was made, the person with mental illness was aware of their actions; the person has signed or affixed their mark to it in a manner that shows they intended it to take effect as a supportive decision-making agreement; the agreement is attested by at least two competent witnesses, one of whom must be the person’s doctor; and the person with mental illness signs or marks the agreement in the presence of the witnesses, with each witness in turn signing in the presence of the person with mental illness.
The Act limits who may be appointed: a Supporter must either have attained the age of majority or be the Public Trustee appointed under the Public Trustee Act. Where no Supporter has been appointed, a representative of the person with mental illness can step into much of the same ground. The Act defines a “representative” in order of priority as a spouse, or if unable or unwilling, an adult child (eighteen years or older), or if unable or unwilling, a parent, or if unable or unwilling, a relative, or, failing all of those, a person under whose care or charge the person with mental illness is.
Duties of a Supporter
The role of a Supporter is not a formality. A Supporter owes a duty of care to the person with mental illness and is required to ensure that any decision made is in accordance with the will and preference of the person with mental illness. This is the operative standard, and it is deliberately different from the previous “best interests” test that still governs guardianship and estate management under Part XII of the Act.
At Section 3J (2) of the Act, a Supporter is required to consider whether the decisions he/she takes conform to the longer-lasting general beliefs, values, and desires that the person with mental illness subscribes to. A Supporter must interpret that will and preference and take into account the rights conferred on such person under the Constitution and, by extension, international human rights law.
Further limits are put on a Supporter’s authority. He or she must not make a decision that will result in a conflict of interest, must ensure that the decision applies for the shortest time possible, and must make continuous efforts to have the person with mental illness express their own will and preference. It is also worth noting that across the Act, a Supporter is given specific powers.
These include:
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Section 9F (1) (b): consent to treatment where the person cannot do so at the time;
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Section 3B (2) (a): participate in treatment planning;
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Section 3C (3) (a): access the person’s confidential medical information on their behalf;
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Section 3G (3) (a): receive notice within twenty-four hours where the person is restrained or secluded;
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Section 9E (6) (a): apply for involuntary admission;
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Section 14 (1A) (a): apply for an emergency admission to be extended; and
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Section 15A (5)(a): apply for the person’s interim discharge into the Supporter’s custody.
Can a Supporter manage the estate of a person with mental illness?
The short answer is no, not directly and not automatically. A Supporter's authority under the Act is built around the person, not their property. Estate management sits in a different part of the Act altogether. It is instructive to note that a Supporter does not get authority over the estate merely by virtue of being a Supporter.
Our understanding of the Act, however, is that a Supporter gets the right to be first in line to ask a Court for the right to manage the Estate of a person with a mental illness. Section 26(1) of the Act provides that an application for an order for the management and administration of the estate of a person with mental illness may be made to the Court, in order of priority, by:
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a Supporter of the person with mental illness; or
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the representative of the person, where the person has not appointed a Supporter.
The implication is, therefore, that a Supporter cannot step in and start managing the person's property on the strength of the supportive decision-making agreement alone. To get that authority, the Supporter (or in the Supporter's absence, the representative) must go to the High Court and ask for it under Section 26 of the Act. The application should be supported by an Affidavit setting out the grounds for the application, full particulars of the person's property and relatives, and a certified copy of the documentation showing the person has been duly admitted or treated as a person with mental illness.
It is worth noting that Section 26(3) of the Act requires notice of the application to be served on the person concerned. However, the Court may waive the requirement for service if it considers service impracticable, inexpedient, or would be ineffectual. Once filed, a Court has the power to have the person examined either by itself or by a registered mental health practitioner, so as to ensure the application is not decided on assertions alone.
What can the Court order upon being presented with an application for management of an estate?
The Court has a menu of orders it may make, including providing for the maintenance of the person, providing for dependants of the person's immediate family, and providing for the payment of the person's debts. Separately, under section 27(2), the Court may appoint a Manager of the estate specifically to safeguard the person's property.
Are a Manager’s powers unfettered?
Section 28 of the Act ties the Manager's powers to the Court's specific orders and imposes hard limits regardless of what the Court has authorized. The Act provides that the Manager cannot mortgage, sell, gift, or otherwise dispose of immovable property, cannot lease it for more than five years, and cannot invest outside securities authorized under the Trustee Act, all without the Court's prior approval. A Manager is also barred from investing estate funds in any undertaking in which the Manager has a personal interest. Section 29 of the Act requires the Manager to file an inventory of the estate's property, money, and debts with the Court and the Public Trustee within six (6) months of appointment.
The Act foresaw that some Managers may not necessarily act within the strict parameters of the Court’s orders, and for that reason, it has prescribed consequences for contravening them. The Act provides that on conviction, a Manager may be imprisoned for up to three (3) years or fined up to KES. 2,000,000. It further states that any loss to the estate through mismanagement by the Manager is recoverable as a civil debt from the Manager's own estate. The Court also retains an ongoing supervisory role over the Manager under Section 31 of the Act.
A Supporter’s relationship with the person with mental illness is personal, consent-based, and rooted in the supported decision-making agreement. It is founded on trust, collaboration, and respect for the individual’s autonomy, with the Supporter’s role limited to assisting the person to understand and communicate decisions rather than making decisions on their behalf. A Supporter carries no automatic authority over the management of property. Where an estate needs protecting, the Act empowers the High Court to do so upon considering Affidavit evidence, conducting medical scrutiny, and the gazettement of such appointment.
Conclusion
The Mental Health (Amendment) Act, 2022 did not simply add a new actor to the Mental Health Act; it changed the Act's underlying premise. Where the law once moved straight from a finding of mental disorder to substituted decision-making, it now asks, first, whether the person can be supported to exercise their own will and preference, and only turns to estate management and guardianship where the evidence shows that support is not enough for a particular matter—in this case, the management of property.
How CM Advocates LLP can help
If you believe you may have a mental illness that would affect your ability to function, or if a family member requires support through a supported decision-making agreement or management of their estate, our team can assess your circumstances and guide you through the available options.
At CM Advocates LLP, we advise clients at every stage of this process, including:
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Drafting supportive decision-making agreements, including coordinating the medical requirements and execution formalities required by the Act to avoid a challenge to the validity of the agreements.
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Advising families on the order of priority and the right person to apply for appointment and/or recognition as a Supporter.
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Advising on, preparing, and filing the requisite application for orders of management and administration of the estate.
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Guiding Managers on legal processes to ensure compliance with the obligations set out in the Act.
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Acting in disputes arising from applications for removal or variation of a Manager under the Act, and/or objections lodged following gazettement under section 27(5) of the Act.
Contributors
Kelvin Mwaniki
Senior Associate
kmwaniki@cmadvocates.com
Binti Said
Legal Assistant
CM ADVOCATES LLP
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Disclaimer:
This publication is provided for general information purposes only and does not in any way constitute legal advice. Specific legal advice should be obtained for individual matters. If you need any further clarifications or require legal advice, please do not hesitate to contact us.