Does the legal system place the responsibility of older parents directly on their offspring (either in the law or specifically in various policies)? | Jamaica Does the legal system place the responsibility of older parents directly on their offspring (either in the law or specifically in various policies)? | Jamaica

27 Sep 2022

The Maintenance Act (2005), part V, section 10.1, states that “every person who is not a minor has an obligation, to the extent that the person is capable of doing so, to maintain the person’s parents and grandparents who are in need of such maintenance by reason of age, physical or mental infirmity or disability” (p.9). Based on the act, the government can take legal actions against the child of the parent or grandparent, if they can be found. Additionally, if there were associated health care costs in the case of extended hospital stays, the government can mandate the child or grandchild to cover the expenses. However, many disagree with the provisions and subsequent consequence of the Maintenance Act. For example, Professor Eldemire-Shearer has asserted that many offspring simply cannot afford or physically provide the care needed to their parents and have strongly advocated for the need for more long-term care options (The Gleaner Jamaica, 2017).

Similarly, Section 29 of the Mental Health Act (1934) “allows the Supreme Court or the Parish Court, on application of the nearest relative or the Attorney-General, to exercise jurisdiction over the management of the property and affairs of a patient if the Court is satisfied by evidence (medical and otherwise) on affidavit that the patient is incapable by reason of mental disorder of managing and administering his property and affairs” (Myers, Fletcher & Gordon Attorneys-at-Law, 2019).

In a blog post on the law firm’s website, it is further explained that according to Jamaica’s Mental Health Act, “a patient is defined as a person who is suffering or is suspected to be suffering from a mental disorder. Diseases such as dementia have been recognised by the Court to be included within the Act’s definition of mental disorder, though it has been held that a person who is comatose and thus unable to have his/her mental capacity assessed is incapable of falling within the Act.”

While the Act allows for some protection of persons who may lack capacity to manage their own affairs, there is a problematic stipulation of the law with regards to who in the patient’s family is delegated with their care or protection and given power over their affairs.

The law in Jamaica does not leave much room for a ‘patient’ deemed lacking in mental capacity to have this kind of input. Thus, the person delegated by the law may not necessarily be the patient’s primary carer or preferred custodian.

“Under the Act, the patient’s ‘nearest relative’ is the only person other than the Attorney-General who may make an application to bring the patient’s affairs within the jurisdiction of the Court. This is only one of the several responsibilities accorded to the ‘nearest relative’ under the Act, another of which is the giving of consent to treatment in a psychiatric facility. In practice, however, problems arise due to the Act’s definition of the term ‘nearest relative’” (Myers, Fletcher & Gordon Attorneys-at-Law, 2019). Section 3(3) of the Mental Health Act defines ‘nearest relative’ a person’s husband or wife; followed by their son or daughter; father, mother, brother or sister, grandparent, grandchild, uncle or aunt and nephew or niece (The Mental Health Act, 1997).


Myers, Fletcher & Gordon Attorneys-at-Law (2019). Challenges in caring for the mentally ill under the Mental Health Act. Available from: https://www.myersfletcher.com/resources/item/challenges-in-caring-for-the-mentally-ill-under-the-mental-health-act.html

The Gleaner Jamaica. (2017). Abandoned with cause? – Senior citizens champion urges caution in condemning those who leave the elderly at hospitals, 13 January 2017. Available from: https://jamaica-gleaner.com/article/news/20170115/abandoned-cause-senior-citizens-champion-urges-caution-condemning-those-who

The Mental Health Act (1997). Available from: https://bellevuehospital.org.jm/pdf/mental_health_act.pdf