While curatorship/power of attorney does not apply to persons with dementia in Jamaica, once the issue of mental capacity is raised before the court by the relative which legally has the right to do so, and this relative is deemed suitable and is appointed by the Resident Magistrate’s or Supreme court over the affairs of the patient, he/she is expected “to do all such things as appear to be necessary or expedient in the interest of and for the maintenance and benefit of the patient; and where it is deemed necessary also for a relative or dependant of the patient” (The Mental Health Act, 1997).

This includes the authority and ability to:

• Transfer, vest, sell, lease, rent or exchange property
• Acquire property in the name of or on behalf of the patient
• Settle property by way of gift
• Execute a will on behalf of the patient
• Fulfil any of the patient’s contractual obligations
• Pay any debts incurred by the patient
• Continue or institute any legal proceeding on behalf of the patient
• Exercise any power of attorney vested in the patient
• Handle all financial affairs of the patient (The Jamaica Gleaner, 2013).

While this ‘guardianship’ of a person lacking mental capacity can be provided by the court to the ‘closest relative,’ it should be explained that in Jamaica, as in Trinidad and Tobago, power of attorney does not apply to a person lacking mental capacity. This is because legally, a person must be capable of understanding the nature and effect of the power of attorney he is purporting to grant, i.e., he must be deemed to have mental capacity. If a person, like a person living with dementia, lacks mental capacity to create a power of attorney, and this is discovered after the power of attorney has already been granted, then the power of attorney becomes invalid and any transaction between the attorney and a third party would be void. The fact that neither the attorney nor any third party was aware of the person’s mental incapacity is irrelevant” (Myers, Fletcher & Gordon, 2014).

References:

Myers, Fletcher & Gordon (2014). Powers of Attorney. Available from: https://www.myersfletcher.com/resources/item/powers-of-attorney.html

The Jamaica Gleaner (2013). Caring for the elderly, 6 May 2013. Available from: https://jamaica-gleaner.com/gleaner/20130506/flair/flair6.html

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