Right to property, inheritance, and contract and persons with mental illness

Abstract

Discrimination against people with mental illness is rife across the globe. Among different types of discrimination is the policy in many countries where persons with mental illness are forbidden to inherit property, and they are not able to enter into a contract in a large number of countries. Using various databases, legislations dealing with law of contract, law of succession/inheritance, and law relating to testamentary capacity (wills) of all UN Member states (193 countries) were studied. With respect to federal countries, the laws of the most populous state as a representative state in the respective country were studied. Only 40 Member States (21%) recognize/allow persons with mental health problems to enter into contracts. Of these, however, only 16 Member States (9%) recognize the right of persons with mental health problems to enter into a contract without any restrictions. The remaining 24 Member States (12%) allow a contract entered into by a person with mental health problems to be invalidated under certain conditions. These countries also make the validity of the contract subject to the capacity to consent or based on the level of understanding of the person with mental health problems. They may allow persons with mental health problems to enter into contracts only for transactions of an insignificant nature or of personal rights. Only 9% of the countries allow people with mental illness to enter into contracts in an unrestricted way. Furthermore, there remain variations between high income and low income states. In spite of international laws in many countries, laws remain discriminatory.

Social justice, health equity, and mental health

“…In a series of studies, Bhugra, Pathare, Joshi, et al (2016c; Bhugra, Pathare, Gosavi, et al, 2016a; Bhugra, Pathare, Nardodkar, et al, 2016b; also see Nardodkar et al, 2016) examined the laws of 193 countries. This group was interested in looking at personal, economic, and political rights of people with mental illnesses.…”

Orientações sobre Serviços Comunitários de Saúde Mental: Promoção de Abordagens Centradas na Pessoa e Baseadas em Direitos

“…A reforma de leis especificamente relacionadas a ações em outros setores é igualmente crucial para evitar a discriminação na educação, emprego, assistência social, habitação, saúde, justiça, casamento e arranjos contratuais, entre outros aspectos. Vários levantamentos mundiais de legislação sobre emprego, voto, casamento, direitos dos pais, contratos legais e direitos relacionados à propriedade destacaram até que ponto as pessoas com deficiências psicossociais são ativa e severamente discriminadas e têm seus direitos negados em cada uma dessas áreas (463,(592)(593)(594). Em alguns países, ser uma pessoa com problemas de saúde mental ou deficiências psicossociais também pode levar à negação do seguro-saúde (595).…”

The Cambridge Handbook of Psychology and Human Rights

“…In terms of the right to be elected, in 91 percent of the countries worldwide, persons with mental health conditions or psychosocial disabilities cannot exercise the right to be elected freely (UN, 2019). In addition, only 40 Member States recognize or allow persons with mental health conditions or psychosocial disabilities to conclude a contract, and 16 out of these 40 countries do not impose any restrictions -meaning that the other 24 countries leave some room for the invalidation of contracts concluded by persons with mental health conditions or psychosocial disabilities (Bhugra et al, 2016b). This reality calls for immediate social and cultural changes to realize participation of persons with mental health conditions or psychosocial disabilities in political and public life, stipulated in Article 29.…”