Written by Colleen Mechanic

3 July 2023

WHAT IS A POWER OF ATTORNEY (POA)? 

Most people are familiar with a ‘power of attorney’ – a document signed to give another person the power to handle their affairs on their behalf. However, what is not as commonly known is that one cannot legitimately give another person powers that one does not personally hold.

In other words, a person must have the mental capacity to manage their own affairs before they can assign someone with the power to handle affairs on their behalf. For a valid legal transaction, the law requires that the parties to the transaction be mentally competent and able to understand the nature, purpose, and consequences of their actions.

Generally, adults are presumed competent to manage their own affairs; however, if a person does not have the mental capacity to manage their own affairs, power of attorney becomes problematic.

WHEN IS A POWER OF ATTORNEY INSUFFICIENT? 

If an elderly parent has Alzheimer’s, their adult child often becomes responsible for their care. Similarly, parents of an intellectually disabled child remain responsible for assisting their child into adulthood. These situations are good examples of when assigning Power of Attorney becomes challenging. In these cases, caregivers are often placed in the position where they must request that their attorneys prepare a power of attorney, giving them the right to handle the incapacitated party’s affairs.

Unfortunately, South African law dictates that power of attorney is insufficient in the cases mentioned above, as the power of attorney only remains valid for as long as the principal person can still appreciate the concept and consequences of granting another person their power of attorney. To further complicate matters, the law dictates that the moment a person becomes mentally incapacitated and is no longer capable of managing his own affairs, the power of attorney lapses.

It is crucial to keep in mind that South African lawmakers purposefully made this power of attorney more complicated in these cases with the view of protecting the incapacitated party from possible exploitation.

WHY WOULD A PERSON BE DEEMED INCAPABLE OF MANAGING THEIR OWN AFFAIRS? 

Mental incapacity can often be attributed to mental illness, intellectual disability, or even the process of ageing.  Although mental illness can take many forms, it is usually an acquired and treatable condition, such as depression or bipolar disorder. Accordingly, mentally ill people may, at times, be able to validly enter into legal transactions depending on whether, at that particular moment, they were mentally capable of doing so. Intellectual disability, on the other hand, is not treatable and encompasses conditions that negatively affect intellectual development, resulting in a lower capability for independent functioning.

WHAT HAPPENS WHEN A PERSON IS INCAPABLE OF MANAGING THEIR OWN AFFAIRS? 

Nobody may legally manage the affairs of another without the required authority to do so. Therefore, when a person cannot manage their own affairs, it is necessary to legally appoint someone to assist them. South African law provides two types of appointments: curatorship or administration.

WHAT IS A CURATORSHIP?

In terms of our common law, the High Court may declare a person incapable of managing their own affairs and appoint a curator to handle matters relating to the person’s estate (known as a curator bonis) or their person (known as a curator personae). The application may be brought in respect of, among other things, a person who is either mentally or physically incapacitated.

WHAT IS THE PROCEDURE FOR APPOINTING A CURATOR? 

The procedure for appointing a curator is set out in Rule 57 of the Rules of the High Court. Any person who wishes to have another declared incapable of managing his own affairs would be required to bring an application to the High Court, justifying their legal standing to bring the application, as well as the Court’s jurisdiction to grant the order. This person would need to explain the reason for the application with reference to the incapacitated person’s age, gender, means, and health, as well as the facts and circumstances relied on to show that such a person is incapable of managing their affairs.  This last allegation would need to be supported by two recent medical reports by medical doctors, one of whom must (where practicable) be a psychiatrist.

Should the application succeed, the Court will appoint an official curator ad litem to investigate the matter and report to the Court and the Master of the High Court. Once the Master receives such a report, they will also compile a report providing their recommendations to the Court regarding the merits of the application, the suitability of the nominated curator, and the nominated curator’s powers and security. The Court may then issue such an order as it deems necessary, and the Master of the High Court then issues the curator letters of curatorship.

ARE THERE DIFFERENCES BETWEEN THE APPOINTMENT OF A CURATOR BONIS AND CURATOR PERSONAE

It must be noted that the appointment of a curator personae (a curator to handle matters relating to the person) places a severe restriction on such a person’s legal capacity, and the Court will make separate appointments for the curator bonis (a curator to handle matters relating to the person’s estate) and the curator personae.  Despite the application for a curator personae following the same process as set out above, the court only considers such appointments in exceptional circumstances. The applicant must also meet a much higher onus of proof that the same is necessary.

WHAT ARE THE LIMITATIONS OF A CURATOR’S POWERS? 

It must further be noted that the curator’s powers are limited, as some acts are viewed as too personal to be performed by a curator. Thus, a curator may not exercise parental authority, institute an action for divorce, or draft a will on the mentally incapacitated person’s behalf.

HOW IS A CURATORSHIP TERMINATED? 

A curatorship is usually terminated upon the death of the person declared incapable of managing his own affairs. However, where appropriate, they may also apply to the High Court to be released from their curatorship.

WHAT IS AN ADMINISTRATOR? 

Under the Mental Health Care Act 17 of 2002 (hereinafter referred to as the Mental Health Act), anyone over the age of 18 who has seen the incapacitated person within the last seven (7) days may apply to the Master of the High Court for the appointment of an administrator. The Master is empowered to appoint an administrator to manage the estate of a person who has been positively diagnosed as being mentally ill or having a severe or profound intellectual disability.

HOW IS AN ADMINISTRATION DIFFERENT FROM A CURATORSHIP? 

In contrast to the application for curatorship, no High Court application is required for administration, making this procedure far less costly.

The option of administration can also be distinguished from the option of applying for the appointment of a curator in that a positive diagnosis of mental illness or severe or profound intellectual disability is a prerequisite for the appointment of an administrator. Therefore, the appointment of an administrator can only be done where the person is mentally or intellectually incapacitated — not where a person is simply physically incapacitated but mentally sound.

WHAT IS THE PROCEDURE FOR APPOINTING AN ADMINISTRATOR? 

The applicant can lodge the Application to Master of a High Court to Appoint Administrator form (MHCA 39 form) in terms of Section 60 of the Mental Health Care Act 17 of 2002 application form directly with the Master of the High Court in whose area of jurisdiction the person in respect of whom an administrator is to be appointed resides.

The applicant must complete and sign the MHCA 39 form under oath and cite all the requested facts, including the details of the incapacitated person and the relationship between the applicant and the incapacitated person. The applicant also needs to include the following in this application:

  • If the applicant is not a spouse or next of kin, they would need to explain why the spouse or next of kin did not make the application and, if they are not available to do so, what steps were taken to establish their whereabouts before making the application.
  • The grounds upon which the applicant believes that the incapacitated person is incapable of managing their affairs and of stating the estimated property value and annual income of such person.
  • All available mental health-related medical certificates or reports are relevant to the incapacitated person’s mental health status and provide particulars and contact details of persons who may provide further information.
  • Details of the person they feel would be best suited to manage the patient’s affairs.
  • Proof that a copy of the application has been provided to the incapacitated person.

ARE THERE ANY RESTRICTIONS INSOFAR AS THE PERSON’S ESTATE IS CONCERNED?

It is important to note that where the value of the incapacitated person’s estate exceeds R200 000 or their income is higher than R24 000 per year; the Master may require that an investigation into their estate take place.  However, if the Master is satisfied and the abovementioned values in the estate are not applicable, an administrator can be immediately appointed.

HOW DOES THE COURT VERIFY THAT A PERSON IS MENTALLY INCAPACITATED? 

Firstly, the decision to appoint a third party to manage another’s affairs is not taken lightly, and, as such, our law requires that the person’s diagnosis meet the definition of “mental illness” in terms of the Mental Health Care Act. This medical question of mental illness must be confirmed by medical certificates or reports by an authorised mental health care practitioner, as defined in the Act. These medical certificates or reports must clearly indicate or confirm the person’s inability to manage their own affairs as a result of a mental illness or a severe or profound intellectual disability.

WHAT WILL BE ACCEPTED AS PROOF THAT THE APPLICATION WAS PROVIDED TO THE INCAPACITATED PERSON? 

Proof that a copy of the application has been provided to the allegedly incapacitated person must be submitted and was introduced as a safeguard to protect the person from any malicious applications being brought. While it may seem odd, given that the application is meant to be brought by someone who feels that the person cannot manage their own affairs, one must remember that the appointment of an administrator is a serious infringement of a person’s right to manage their own affairs.

The Master will typically accept the following as the proof required :

  • a registered mail posting slip;
  • a signed acknowledgement by the allegedly incapacitated person, where the application has been hand-delivered; or
  • an affidavit by a responsible person who witnessed the delivery of the copy of the application, where the allegedly incapacitated person is incapable of signing an acknowledgement of receipt. If the application fails this, it may be served by the Sheriff or a member of the South African Police Service, who can then provide a return of service.

HOW IS AN ADMINISTRATION TERMINATED? 

Suppose a person for whom an administrator has been appointed recovers from his mental illness to the extent that he is once again capable of managing his own affairs. In that case, an application may be made to the Master of the High Court in terms of Section 64 of the Mental Health Care Act to terminate the administration.

 WHAT ARE THE FUNCTIONS AND RESPONSIBILITIES OF CURATORS AND ADMINISTRATORS? 

The powers of a curator and an administrator are mostly the same, and the Court or the Master would outline the exact content thereof, including any fees that a curator or administrator may be entitled to charge.

In general, a curator or administrator would be required to act in the incapacitated person’s best interests to assist them in managing their affairs.  Thus, they would be required to receive and administer all the assets and to carry on (as far as possible) any business or undertaking for the incapacitated person’s benefit. They are also charged with acquiring any movable or immovable property and investing or applying any funds for the estate’s benefit. The curator or administrator may be called upon by the High Court or the Master to furnish security for the proper administration of the estate to ensure that a curator or administrator is acting in the incapacitated person’s best interests,

Given that these appointments involve such a high degree of invasion of the person’s rights, the curator and administrator must act with the highest degree of integrity and the lowest degree of intrusiveness possible. They must consult with the incapacitated person on all decisions, where possible, and ensure their privacy and dignity are respected.

ARE A CURATOR AND ADMINISTRATOR SUPERVISED IN CARRYING OUT THEIR DUTIES? 

A curator and administrator carry out their duties under the supervision of the Master of the High Court. They are obliged to lodge detailed annual administration accounts with the Master, which will be scrutinised to verify the income, expenses, and capital assets to ensure that they are being safely administered and not exposed to unduly risky investments. The Master will also ensure that, if security is provided, it is adequate to cover the estate’s value.

 Dealing with the power of attorney of a person incapable of managing their own affairs can be a complex legal battle that often weighs heavily on families. Burger Huyser Attorneys’ specialists have experience with applications for curatorship and administration with in-depth knowledge of the laws, legalities, and procedures involved in this delicate process. Contact Burger Huyser Attorneys for assistance with your application to appoint a curator or administrator today!

 Indemnity:  The above article does not constitute legal advice. We strongly recommend that you contact our office to set up a consultation with one of our family law specialists for legal advice tailored to your specific circumstances.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE