Understanding Supporters and Estate Management Under Kenya’s Mental Health Act
Introduction
Imagine a family faced with a difficult situation.
A parent has been diagnosed with a mental illness. They own a house, operate a bank account, receive a pension and have dependants who rely on them. The family is concerned that, because of their condition, they may not always be able to make or communicate decisions about their treatment or affairs.
The family's first instinct may be to ask: Who can now make decisions for them? Who can access their property? Who can manage their bank account?
Before 2022, Kenya's mental health law largely approached these questions through the language of guardianship, management and the "best interests" of a person suffering from a mental disorder.
The Mental Health (Amendment) Act, 2022 introduced an important change in this approach. It placed greater emphasis on legal capacity, autonomy, will and preference, and supported decision-making. The amended Act now recognizes a "Supporter" to be a person appointed by a person with mental illness to assist them in exercising their rights and making decisions according to their will and preference.
This article explains the distinction between supported decision-making and estate management, the requirements for appointing a Supporter, the duties of a Supporter, and how the Kenyan Courts have begun applying the amended law.
What changed with the Mental Health (Amendment) Act, 2022?
The amendments introduced a rights-based framework into the Mental Health Act. Section 3K is central to this: it provides that a person with mental illness has a right to recognition before the law and is entitled to enjoy legal rights on an equal basis with others, in all aspects of life.
A diagnosis of mental illness therefore no longer means an automatic loss of legal capacity. A person may need assistance in specific circumstances while still retaining their rights, choices and preferences which is precisely what the Supporter mechanism is designed to provide.
Who is a Supporter?
Under section 2, a Supporter is a person appointed under section 3I by a person with mental illness to make decisions on their behalf, according to that person's will and preference.
The wording is deliberate. A Supporter does not simply take over someone's affairs. Their role facilitates decision-making while respecting the person's autonomy. The law moves away from assuming that another person should decide what is "best" for someone purely because that person has a mental illness. The governing question instead becomes: what does the person want, and how can that be respected and carried out?
Can a person appoint a Supporter without going to Court?
Section 3I(1) allows a person with mental illness to appoint a Supporter without first commencing court proceedings or being admitted to a facility. The appointment must, however, meet statutory requirements.
The person must enter into a written supportive decision-making agreement with the proposed Supporter, valid only where:
- The person with mental illness was aware of their actions when making the agreement;
- They sign or affix their mark to it, with an intention to give it effect;
- The agreement is attested by at least two competent witnesses, one of whom must be the person's doctor; and
- The person and each witness sign in each other's presence.
Because of these formalities, an informal family understanding such as "my daughter takes care of my affairs" does not amount to a legally recognized Supporter appointment
Who can be appointed as a Supporter?
The Act provides that a person is eligible to be appointed as a Supporter if that person:
- Has attained the age of majority; or
- Is the Public Trustee appointed under the Public Trustee Act.
Where a person with mental illness is unable to appoint a Supporter, the Act provides for a representative.
The representative is determined according to a statutory order of priority:
- Spouse;
- Adult child;
- Parent;
- Relative; and
A person under whose care or charge the person with mental illness is.
This distinction is important because Supporter and Representative are not interchangeable concepts. A Supporter derives their authority from an appointment made by the person with mental illness. A Representative steps in where a Supporter has not been appointed.
What does a Supporter actually do?
Section 3J imposes a duty of care on the Supporter. Decisions the Supporter makes must accord with the will and preference of the person with mental illness, taking into account their longer-lasting beliefs, values, desires, constitutional rights and applicable international human rights principles.
The Supporter must also avoid conflicts of interest and continue making efforts to enable the person with mental illness to express their own will and preference. The role is therefore not intended to become a permanent substitute for the person's own decision-making.
What powers does a Supporter have?
Depending on the circumstances, a Supporter may among other things participate in treatment planning, access confidential medical information on the person's behalf, consent to treatment where the person cannot do so at that moment, receive notice of restraint or seclusion, apply for involuntary admission or its extension where the Act permits, and apply for interim discharge into the Supporter's custody.
The common thread is that these powers are directed principally toward care, treatment, representation and supported decision-making.
This brings us to an important question about property.
Does being a Supporter automatically give you control over the person's property?
No, and this is arguably the most important practical point in the amended Act. Appointment as a Supporter does not, by itself, authorize a person to operate bank accounts, sell land, transfer property, collect rental income, manage investments, or otherwise administer the person's estate.
Estate management is dealt with separately, under Part XII of the Act. Section 26 sets out a procedure for applying to the Court for an order concerning the management and administration of a mentally ill person's estate. A Supporter has priority to bring that application; where none has been appointed, the Representative may apply instead.
In short: Supporter appointment does not equal estate management. It gives priority to apply to court for it.
What must be included in an application to manage the estate?
A section 26 application must be supported by an affidavit setting out among others the grounds for the application, full particulars of the person's property, particulars of their relatives and a certified copy of the admission or treatment documentation confirming they have been duly admitted as a person with mental illness.
The person concerned should ordinarily be served with the application, though the court may waive service if it is impracticable, inexpedient or ineffectual. The court may also order that the person be examined by the court itself or by a registered mental health practitioner, so their capacity and condition can be properly assessed. This is a judicial process, not a matter resolved on a relative's say-so
What can the High Court order?
Under section 27, the court may make orders for the maintenance of the person and of their dependent family members and for payment of their debts. It may also appoint a Manager of the estate to safeguard the person's property and may appoint the existing Supporter or Representative to that role.
Crucially, a Supporter only becomes a Manager through the court's appointment; the supportive decision-making agreement alone does not confer estate-management authority.
What have Kenyan Courts said?
The emerging case law demonstrates that Kenyan Courts are treating estate-management applications as serious judicial proceedings requiring evidence and safeguards.
In re KN (Subject) [2024] KEHC 3321 (KLR)
The High Court considered an application under section 26 concerning the management and administration of the estate of a person with mental illness. The Court noted the statutory priority given to a Supporter and, where there is no Supporter, to a Representative. It further recognized the Court's power to appoint a Supporter or Representative as the Manager of the estate. The decision illustrates that the amended Act creates a structured process rather than permitting relatives to assume control over property informally.
In re ERW (A Person Suffering from Mental Disorder) [2024] KEHC 1660 (KLR)
The High Court considered an estate consisting, among other things, of a bank account into which the subject's pension was deposited. The Court recognized that the subject's children fell within the statutory definition of "representatives" and could therefore bring the application. The Court also relied on the earlier decision in In re CWN, which required evidence establishing that the person suffered from a mental disorder and was incapable of managing their affairs. The Court further emphasized that the application and resulting orders must be directed toward the interests of the person with mental illness.
In re AA [2025] KEHC 1175 (KLR)
Decided at the High Court in Mombasa, this case involved an aunt seeking appointment as guardian ad litem and Manager. The court found she was not a Supporter, since the patient had never appointed her in writing, but that her status as an aunt qualified her as a Representative with locus to apply. The court weighed three factors: whether the person has a mental illness, whether they require representation, and whether the proposed orders serve their interests. It appointed her as Manager but barred her from selling, charging or otherwise alienating immovable property without leave of court, required the appointment to be gazetted, and ordered an inventory and statement of account within six months.
In re WKT [2025] KEHC 7260 (KLR)
Here, a spouse who had already been appointed Supporter applied for authority over the subject's bank account. The court recognized her Supporter status and granted access to and withdrawal of the funds for the subject's benefit — illustrating how the Supporter role can operate alongside, and feed into, the court's separate estate-management jurisdiction.
Limits on a Manager's powers
Appointment as Manager does not confer unlimited control. Section 28 requires prior court approval before a Manager may mortgage, sell, gift or otherwise dispose of immovable property, lease it for more than five years, or make investments outside those permitted by law. A Manager must also steer clear of investing estate funds in any undertaking in which they hold a personal interest. The court retains ongoing supervisory authority.
Accounting for the estate
A Manager must file an inventory of the estate's property, money and debts within the statutory period, and the court may require accounts and supervise the administration generally. This is more than procedure: the property still belongs to the person with mental illness. The Manager administers it for that person's protection and benefit — they do not acquire ownership of it.
Consequences of mismanagement
A Manager who breaches the statutory requirements may face criminal consequences, including imprisonment or a fine, and the law provides a mechanism to recover losses caused by mismanagement. The role is a fiduciary responsibility, not a personal benefit, and anyone accepting it should understand these obligations before taking control of another person's assets.
Conclusion
The Mental Health (Amendment) Act, 2022 marks a significant shift in how Kenya approaches persons with mental illness by recognizing their right to legal capacity while requiring that any decisions made by a Supporter reflect their own will and preference. At the same time, the Act does not leave property matters to informal family arrangements: where an estate needs management, sections 26 and 27 set out a dedicated High Court process, and the emerging case law shows courts weighing medical evidence, the applicant's relationship to the person, and whether the proposed orders genuinely serve that person's interests.
For families, the practical lesson is straightforward: being a Supporter is not the same as having authority over someone's estate. A Supporter helps a person exercise their rights and make decisions according to their own will and preference. A Manager of an estate derives authority from the court and remains subject to the court's supervision and the restrictions the Act imposes. Understanding this distinction helps families protect both the dignity and autonomy of their loved one, and the property needed for their care and the support of their dependents.
How We Can Assist
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.
