A client asked me if she could still act on a power of attorney that her mom signed in her favour now that her mom is so ill, she can’t make informed decisions.
In South Africa, a power of attorney terminates on the incapacity of person (who becomes incompetent in law and is deemed “to be of unsound mind and as such incapable of managing his affairs”).
We don’t have the concept of an enduring power of attorney. These shortcomings affect not only the sick or elderly and their families. “Every competent individual is to some degree vulnerable to the possibility of becoming incapable,” the South African Law Reform Commission (SALRC) pointed out in a discussion paper published in 2014 into what it calls “the outdated and inappropriate ways” in which the law deals with declining decision-making ability. To avoid this, now is the time to consider a living trust.
Once the power of attorney becomes invalid, there are only two options – the family must apply for administration or curatorship.
On behalf of the family, a lawyer applies to the High court for three things:
· to declare the patient of unsound mind and incapable of managing his/her affairs;
· to appoint a curator ad litem;
· to appoint a curator bonis or curator personae or both;
The curator ad litem is usually an advocate, who interviews two specialists regarding the patient’s mental facilities, and then reports back to the court whether the patient is of unsound mind and incapable of managing his/her affairs.
If so, the court will appoint a curator. There are two forms of curatorship and one or both may be appointed:
· the curator bonis administers the person’s property, including his finances;
. the curator personae takes personal decisions for the person. This involves serious curtailment of the person’s rights and freedoms and the court is therefore not easily persuaded to grant such an appointment.
The Mental Health Care Act provides for the appointment of an administrator to manage the patient’s property. This Act applies only to the mentally ill and to those with severe or profound intellectual disability.
It is not necessary to go to the high court for this as you can apply direct to the Master of the High Court. A mental health care practitioner who could be a general practitioner and not necessarily a psychiatrist – certifies that the person suffers from an illness or disability relating to mental health.
The administration applies only if the capital assets of the patient’s estate is under R200,000 or earns an income of up to R24,000 per year.
The Master appoints an interim administrator to investigate the patient’s finances, etc. and makes a recommendation to the Master. In this case the costs payable to the investigator are negotiated by the Master and are payable out of the estate.