Cayman Islands: Mental Capacity Issues - Cayman Islands And British Virgin Islands

Last Updated: 29 December 2015
Article by Timothy Haynes and Rowena Lawrence

Rowena Lawrence and Tim Haynes of Walkers provide an overview of the relevant regimes for mental capacity legislation in the BVI and the Cayman Islands.

Hong Kong's ageing population and the ongoing popularity of offshore structures will make the legislation in the major offshore jurisdictions concerning mental capacity issues increasingly relevant. Perhaps conscious of this, the legislators in both the British Virgin Islands (BVI) and the Cayman Islands have recently updated their rules in this area.

The mental health legislation in both the Cayman Islands and the BVI has been reformed relatively recently to safeguard the rights of mentally incapacitated individuals. That legislation provides the courts with broad powers over the property and affairs of mental health patients. Given the constantly evolving jurisdictional arguments that arise in the courts of both Cayman and BVI, while it is unusual for individuals who are parties to Financial Services Division (Cayman) or Commercial Division (BVI) actions to be resident in those jurisdictions, there are circumstances in which it may be necessary to consider the application of laws of those jurisdictions when incapacitated persons are involved. An application to the offshore court may be made in a number of situations, for example where the individual concerned holds property (most obviously shares in an offshore company) in the offshore jurisdiction or where there is no obvious or effective order available in the jurisdiction in which the incapacitated individual resides. The relevant legislation, as it is applied in both the Cayman Islands and BVI, is considered below.

The Cayman Islands

The Mental Health Law, 2013 (MHL) gives the Cayman Islands Grand Court (the Grand Court) the power 'to do or secure the doing of all such things as appear desirable for the maintenance or benefit of" a mental health patient, his family and those for whom he might be expected to provide.1 In exercising such powers, the Grand Court may, on behalf of the patient, arrange for another person to deal with relevant property, enter into any settlement, manage a business, dissolve a partnership, complete a contract, conduct legal proceedings and act as trustee.

The Grand Court may also appoint a receiver.2 Where an application for the appointment of receiver is made, such application is made by way of originating summons issued by the patient, the spouse, the guardian appointed by the court, a near relative or the Solicitor General. The application is required to be supported by a medical report certifying the mental capacity of the patient, and an affidavit giving particulars of the patient's relatives and of the circumstances giving rise to the application.3

Further, the Grand Court Law (2015 Revision) states: 'The Court shall have the power to appoint guardians of the persons and estates of persons of unsound mind or suffering from mental illness and for that purpose to enquire into, hear and determine by inspection of the person the subject of such enquiry, or to examine on oath or otherwise the party in whose custody or charge such person may be, or any other person or persons, or use such other ways and means by the truth may be discovered'.

An application for appointment of a guardian may be necessary in order to administer a patient's properties and affairs in Cayman. That application would also be made by way of an originating summons issued by the patient, the spouse, any near relative, or the Solicitor General. The evidence in support would be the same as for the appointment of a receiver (referred to above).4 The MHL is unequivocal in that the authority of a guardian over a patient takes precedence over the authority of any other person.

Pursuant to O.80 r2 of the GCR, a mental health patient may only bring a claim by a 'next friend', and may only defend a claim by a 'guardian ad litem'. The next friend or guardian ad litem must be legally represented. Where the order appointing a guardian covers the power to conduct proceedings, there is no need to make a separate application for the appointment of next friend or guardian ad litem. In other cases, it will generally suffice for a written consent to act as next friend or guardian ad litem be filed with the court.5


Section 33 of the Mental Health Act 2014 (the MHA) empowers the BVI Court to make orders for the following:

  • for the maintenance or benefit of the patient or his or her family,
  • to make provision for individuals whom the patient might be expected to provide, or
  • to administer the patient's affairs.

Specifically, these powers include the making of orders for the management or dealing of property, the execution of a will, the carrying on a business, dissolution of partnership, carrying out a contract, conducting legal proceedings, payment of debts, appointment of trustees,6 and appointment of receivers.7

Section 38 of the MHA specifically provides that the BVI Court may direct the vesting of stock in the name of a curator appointed outside of the BVI, if the court is satisfied that the curator has been validly appointed under the relevant applicable law, and it is expedient in the circumstances for the BVI Court to do so.

As with the position in the Cayman Islands, part 23 of the Civil Procedure Rules provides that a mental health patient must have a next friend to conduct proceedings on his or her behalf. Further, such next friend must be legally represented.8 Generally speaking any person can be appointed a next friend without a court order by a certification in writing that the next friend can fairly and competently conduct the proceedings in question and has no interest adverse to that of the patient.9


Both the Cayman Islands and the BVI Courts are now able to provide a wide-range of assistance in dealing with the property and affairs of mental health patients. While the BVI statute specifically provides for the dealing with property in the jurisdiction, in the interests of comity, notwithstanding the absence of a specific provision, it is likely that the Grand Court would adopt a similar approach.


1 Section 18 of the MHL

2 Ibid. Section 19

3 Ibid. Order 80 Rules 17 and 20

4 Order 80 Rules 28 and 29 of the Grand Court Rules1995 (as amended) (the GCR)

5 Ibid. Order 80 Rule 3

6 Section 34 of the Mental Health Act 2014

7 Ibid. Section 37

8 Part 23.2 of the ECSCR

9 Ibid. Part 23.6

Previously published in the STEP Hong Kong Branch Newsletter (December 2015)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.