Planning Ahead for Peace of Mind
Life can be full of surprises, and while most of us work hard to ensure financial stability for ourselves and our families, it’s equally important to plan for the unexpected—especially the possibility of losing the ability to make decisions for ourselves. A common legal tool used for this kind of forward planning is the Power of Attorney, which allows someone to appoint another person to make decisions on their behalf.
These powers can be narrow—like giving access to a single bank account—or broad enough to cover financial, health, and personal decisions. However, a critical requirement for making a valid Power of Attorney is that the person creating it (called the “principal”) must have the mental capacity to understand and agree to the powers they’re giving. They must also be able to sign the document themselves.
But What Happens If It’s Too Late?
Sometimes life moves faster than we can prepare for. A sudden illness or the gradual effects of aging can leave someone unable to make decisions and, importantly, unable to create a Power of Attorney. In those cases, legal action can still be taken. An application can be made to the High Court of Trinidad and Tobago under the Mental Health Act, supported by the Civil Proceedings Rules (CPR), for the court to take control of the person’s affairs. The person in question is referred to as a “patient” under the law.
Who Is Considered a “Patient”?
According to the CPR, a patient is someone who, because of a mental disorder (as defined by the Act), is incapable of managing their own affairs. The Mental Health Act itself defines a patient more broadly as someone suffering from or suspected to be suffering from mental illness or mental subnormality.
Who Can Step In and Apply to the Court?
The law allows either a public officer or a next of kin of the patient to apply to be appointed by the court as the Next Friend of the patient. This person will be legally responsible for managing the patient’s property and affairs.
The Act outlines the order of priority for who qualifies as “next of kin”: spouse, then child, then parent, grandparent, and lastly, sibling.
If no family member is available or willing to apply, the application can be made by a public officer—specifically, someone from the Office of the Attorney General (via the Chief State Solicitor’s Department), who assists the court in such matters.
What Does the Application Require?
The court requires a sworn affidavit confirming that the patient is incapable of managing their own affairs due to a mental disorder. Common situations where this arises include cases of dementia, Alzheimer’s, or other degenerative mental conditions.
This affidavit must be supported by a medical certificate or report from a qualified psychiatrist, a medical officer from a psychiatric hospital, or the hospital director. The report must confirm the mental disorder, the incapacity it causes, and the likely duration of the condition.
Additionally, the applicant must provide proof of their relationship to the patient—such as a birth or marriage certificate. If the applicant is one of multiple children, the law requires consent from all siblings before the court will appoint one as Next Friend.
What Can the Court Do?
Once an application is approved, the court can make any order necessary for the care of the patient and the management of their property and finances. It may also require the appointed Next Friend to file regular reports updating the court on the patient’s health, living situation, and financial status.
Importantly, the court can revoke or replace the appointment of a Next Friend at any time, even without a new application being made.
Final Thoughts
As Scottish poet Robert Burns once said, “The best laid plans of mice and men often go awry.” No matter how carefully we plan, life can throw us off course. But in times of mental incapacity—when someone can no longer take care of themselves—the law provides a path for loved ones or public officers to step in and ensure they are protected.