Family law covers mental disorders. You may have family members who suffer from mental illnesses.
And maybe you wish that there was something that you can do to help them.
Because, people with mental illnesses are often helpless to help themselves.
Sometimes they seem fine. Often, they can still function.
But there are times when they cannot manage their own affairs.
In some cases, mental illness comes after a traumatic experience, such as a divorce.
That’s when you might need the help of a family lawyer.
In 2001, the World Health Organization (WHO) said that one in four people suffer from mental disorders at some point in their lives.
Dr Gro Harlem Brundtland, Director General of the WHO, said that mental disorders are not a personal failure. Rather, society has failed to respond appropriately to people with mental disorders.
Importantly, WHO noted that many people with mental disorders can be treated. However, not many are willing to undergo the treatments required to cure their mental disorders.
As this article will make clear, family members of a person with mental disorder, can do something about it.
Defining Mental Disorders
“Mental disorder” is defined under Malaysia’s Mental Health Act 2001 as “any mental illness, arrested or incomplete development of the mind, psychiatric disorder or any other disorder or disability of the mind however acquired.”
When you break it down, it seems that mental disorders can be further classified.
- Any mental illness.
- Arrested or incomplete development of the mind.
- Psychiatric disorder.
- Any other disorder or disability of the mind.
Our Mental Health Act 2001, it seems, recognises mental illnesses as well as brain disorders.
Eric Kandel, a Nobel Prize winner and a professor of brain science, said that mental disorders originate from the brain itself. Because mental processes are brain processes.
Getting a Court Order
In Malaysia, the Court can make an order to allow the family of a mentally disordered individual to form a committee to manage either
- The person who is mentally disordered, himself; and/or
- The estate of the mentally disordered persons.
The word “estate” means the person’s assets and wealth.
We normally hear of the person’s “estate” being discussed when a person has passed away.
But, the estate of a living, mentally disordered person, can be the subject of a court order.
Family members only, or …?
At this point, there needs to be a note. We write of family members being the parties to form the committee.
But section 58, does not specifically refer to the appointment of family members as committee members.
Instead, all it says is, “the court may appoint a committee or committees”.
Does it mean that only family members can apply to be a part of the committee for a mentally disordered person?
Or, does it mean that it is open to non-family members?
The Act isn’t clear on this point.
Committee formed for estate only
Section 58 of the Mental Health Act 2001 provides that, the court may order for the formation of a committee to manage the mentally disordered person, and his/her estate.
But if the mentally disordered person is not a harm to others, the court can order the committee to manage only the estate of the person.
In such a case, the committee does not need to manage the mentally disordered person, only his estate.
Remuneration of Committees
When appointing the committee, the court can order that committee member(s) be remunerated out of the person’s estate.
This might make sense if the role involves a lot of effort.
But this should also take into consideration, the estate of the mentally disordered person.
If the person is rich, and has a lot of wealth, setting aside some remuneration should not be a problem.
If the person is poor, and has very little wealth, the remuneration may help to quickly dissipate the estate.
Putting Up Security
At times, the estate might be quite substantial. There is a danger that the committee members will help themselves to the wealth of the estate.
In such a case, it makes sense for the court to order would-be committee members to put up security.
This would allow the court to have a degree of assurance, that the committee member is sincere.
But a committee member may be motivated to put up a security, if the estate is substantial. After all, there is the chance of getting remunerated.
A court needs to view each case subjectively and decide.
Powers of Management for Estate
The court may, in its order, give authority to the person(s) in charge of the committee to deal with the assets of the mentally disordered person. (see s. 59(1), MHA 2001)
However, this doesn’t allow the committee to:
- Sell the estate
- Charge the estate
- Rent any part of the estate for more than 3 years.
“Charging” the estate means treating the estate as collateral for a banking facility.
So, it seems that the committee cannot dissipate the fixed assets of the mentally disordered person.
But, this is only in the ordinary course of managing the estate.
Selling, charging, or otherwise disposing to raise funds
The law allows a committee to sell, charge, or otherwise dispose of any property belonging to the mentally disordered person.
The reason? To raise funds for the benefit of the mentally disordered person.
It seems that, under section 63, MHA 2001, this power of selling, charging, or otherwise disposing of assets, can be exercised only pursuant to a court order.
In other words, the court must approve of the sale, charge, or disposal of the asset.
As long as the court approves, it can be any type of asset, moveable or immoveable. This means that it covers immoveable assets like houses and land, and moveable assets such as money, and shares.
But the court will allow it only in four circumstances:
- To pay for the debts of the mentally disordered person, and debts incurred for his benefit.
- To discharge any encumbrance on his estate.
- To pay for the future maintenance of the person, and his family.
- To pay for proceedings under the MHA 2001, and costs incurred by order or authority of the court.
Thanks for reading.
This article has been prepared by Kevin Koo with assistance from Lok Hon Jet.
This article was prepared for general information only and should not serve as legal advice. Your case might be different. Please consult with a lawyer if you are interested in forming a committee under the Mental Health Act 2001.