29 Jun Is your General Power of Attorney still valid?
We all know that a General Power of Attorney can be useful and convenient in circumstances where a person is unable to act himself/herself. This could be due to a variety of reasons, such as extended or regular travelling. In many households today, one partner works abroad, and a General Power of Attorney is the ideal way for the partner or spouse in South Africa to act on behalf of the spouse/partner working abroad. As stated, the reasons for granting someone Power of Attorney are vast.
What is a General Power of Attorney? In plain terms, it is a written document in which a principal will give an agent the authority to act on his or her behalf. In a General Power of Attorney, the scope and extent of the agent’s powers and authority to act are extremely broad.
However, what most people do not know is that a General Power of Attorney (and by nature therefore also, Special Powers of Attorney) can expire or become inoperative or invalid. The test is – as soon as a principal is mentally not capable to withdraw his/her Power of Attorney, it lapses automatically.
Despite belief to the contrary, the concept of an Enduring Power of Attorney is not recognised in South African Law. What is an Enduring Power of Attorney? It is a legal authorisation to act on someone else’s behalf in legal and financial matters which can continue in force after the person granting it loses mental capacity. An Enduring Power of Attorney can be used to manage the affairs of people who have lost the ability to deal with their own affairs, without the need to apply to any Court. As stated though, this concept is not recognised in South Africa.
In South Africa, the law is clear. When a person is of unsound mind and has diminished mental capacity, the only way to address this mental incapacity is with curatorship. Any Power of Attorney given by a principal to an agent is immediately terminated on the mental incapacity of the said principal who granted the Power of Attorney.
What are the Concerns for Power of Attorney?
Herein lies the concern for Power of Attorney – many caregivers and family members are under the impression that Powers of Attorney are valid until the principal passes away and that they can legally and lawfully act on behalf of the principal, despite the principal’s mental incapacity. Despite their impression and good faith, caregivers and family acting in terms of a Power of Attorney that is no longer valid as a result of the principal’s mental incapacity, are performing unauthorised acts and are acting unlawfully. They even risk being held personally liable if they performed any acts based on the Power of Attorney that was automatically terminated due to the principal’s incapacity.
In 2004 the South African Law Commission published a discussion paper on adults with impaired decision-making capacity in which they found that the current solution in our legal system dealing with this issue, being curatorships, is highly unsatisfactory. They suggested alternatives and even submitted a draft bill to address the shortcomings. Until such time that the law is changed, the only way to legally and lawfully act on behalf of someone who is no longer capable of managing their own affairs, is by appointing a Curator Bonis or an administrator.
What is a Curator Bonis? A Curator Bonis is appointed by order of the High Court in terms of the High Court Rules whereas an Administrator is appointed in terms of the Mental Health Act.
Let’s look at Curatorships in More Detail
When is a Curatorship needed?
As stated, a curatorship application is made when an individual (“the patient”) is incapable of managing his/her own affairs due to mental incapacity.
Why is a Curatorship needed?
To protect the patient from making decisions that could be to his / her detriment. It is unlawful to act on behalf of a person who has lost mental capacity, only an appointed curator may do so lawfully. As stated, even Powers of Attorneys terminate once the principal has lost mental capacity and hence an application to appoint a curator would be instituted.
How is a Curatorship appointed?
An application is made in terms of Rule 57 of the High Court Rules. The court declares such person to be of unsound mind and incapable of managing his / her own affairs and appoints a Curator to the person (called Curator ad Personam) or property (called Curator Bonis) to take charge of the patient’s affairs.
Where to apply for Curatorship?
The application is made to the High Court in the jurisdiction in which the patient resides.
What is needed and what is the process of applying for Curatorship?
- A founding affidavit by the applicant, setting out the personal details of the patient, full particulars of the patient’s means, general state of physical health, and circumstances of the patient’s incapability of managing his/her affairs.
- Affidavits by two medical practitioners who have conducted a recent examination of the patient and provided a report that the patient is, in their opinion, incapable of managing his/her affairs. One affidavit usually by a general medical practitioner, and the other by a psychiatrist.
- Approach the court for the appointment of Curator ad Litem – a person who may be suggested by the applicant and is usually an advocate of the High Court. The Curator ad Litem will interview the patient and make further inquiries in order to draft a report to the court about the patient’s mental condition, means and circumstances and to confirm that the patient is indeed unable to manage his/her own affairs and that it is in the patient’s best interest that a Curator ad Personam or Curator Bonis be appointed.
- The Application and Curator ad Litem report must be submitted to the Master of the Supreme Court, and he must report to the court as to furnishing of security and powers of the Curator.
- Approach the court for the appointment of a Curator Bonis and/or Curator ad Personam. The Curator Bonis is the person who will take charge of the financial affairs of the incapable person. A Curator ad Personam is appointed to look after the patient’s physical welfare and make decisions relating to that on his/her behalf. A Curator ad Personam will only be appointed in circumstances which calls for the assistance of one, where a Curator Bonis would normally be appointed with regard to a Curatorship application.
For assistance and more information regarding this matter, contact Eleanor Kritzinger from our Litigation Department at Louw & Coetzee Attorneys – 021 976 3180