For individuals no longer capable of managing their own affairs.
Do you know what happens if you can no longer make decisions in your own best interests? If something happens to you and for some reason you are unable to understand the nature, purpose and consequences of your actions?
The law refers to this as “mental incapacity” or “diminished capacity”, and it can be very traumatic for all parties concerned. Diminished capacity can result from any number of different causes – including mental illness, intellectual disability and incapacity related to ageing in general. As far as the elderly are concerned, one of the major causes of diminished mental capacity is dementia.
Our law attaches no consequences to the expressions of will, decisions, choices and transactions of a person who is “mentally incapacitated”. This is not meant to be a punishment – it is to protect the mentally incapacitated person from potential exploitation.
Powers of attorney
Many people, when they get older and frailer, give a general power of attorney to a trusted person (a family member, attorney, accountant or financial advisor) to transact on their behalf. What people often don’t realise is that this power of attorney can only validly be used while the principal is still mentally capable of making their own decisions, has contractual capacity and still understands the consequences of granting another person his or her power of attorney. The moment a person becomes mentally incapacitated and is no longer capable of managing his or her own affairs, the power of attorney lapses and someone has to be legally appointed to manage that person’s affairs.
Appointment of either an Administrator or a Curator
- The common law procedure for the appointment of a Curator – requiring an application to the High Court.
- The procedure for the appointment of an Administrator as set out in the Mental Health Care Act 17 of 2002.
As daunting and complex as all this may sound, I can assist and support you.