Failing mental or physical ability: legal arrangements to note

In recent years, advances in medicine mean that many more people are living to advanced ages than previously. One consequence of this is that we are seeing more cases of dementia, including Alzheimer’s, than previously. In fact, according to Forbes, “the number of adults…living with dementia worldwide is expected to nearly triple, from an  estimated 57 million in 2019 to 153 million in 2050.” 

Within our own community in Cape Town, we have seen a significant increase in demand for care for people with these sorts of conditions. This need is what prompted the development of a new memory care unit at Highlands House.

In addition to the fact that the numbers are constantly increasing, we have an added dilemma in our community: many elderly folk have children living elsewhere and so family members are not always available to step in to assist the person to manage their affairs.

Thankfully, the law offers a number of solutions to these problems, but action must be taken in good time. If nothing is done, the risk is that, should a person deteriorate quickly and need, say, to move from their home into a care facility urgently, it’s likely that there will be problems. This is certainly true if a property has to be sold to raise the funds for the care home. Allocating rights in the law for someone else to act on behalf of the person takes time, so these rights should be in place before an emergency arises.  

The Chronicle spoke to two local attorneys about ways to deal with these situations: Sheri Breslaw, Director at Fairbridges Wertheim Becker, and Ben-Zion Surdut, a long-standing partner at Getz Hyams and Surdut Attorneys. They shared information as a guide for how to proceed.

WHICH SOLUTION IS BEST FOR WHICH SCENARIO? Person suffering mild disability of a physical or mental type. The person must be lucid at times.

The General Power of Attorney lapses if a person becomes  mentally incapacitated, or on death.
A person unable to control their financial or personal affairs because of severe disability, e.g. advanced dementia or Alzheimer’s. 

Appropriate for someone with limited assets, e.g. a property, some investments.
A person unable to control their financial or personal affairs because of severe disability, e.g. advanced dementia or Alzheimer’s, or physical incapacity.

Appropriate for someone with extensive wealth and many assets.
PROCESSAiling person signs a Power of Attorney document naming a person to act on their behalf. Document is legally valid only while the person is still able to understand the authority granted.

Power of Attorney can be cancelled at any time.
Application made to Master of High Court. Master will want proof of the person’s incapacity so a psychiatrist’s report is needed.

Administrator must submit  annual report to the Master.
Application made to High Court, supported by 2 medical reports – one from a psychiatrist, confirming that the individual is no longer able to manage their own affairs.

2-stage process. 1st stage = an investigation regarding the necessity for appointing a Curator (Bonis). 2nd stage = court makes a final order once the necessary reports have been submitted.

Curator must submit an annual report to the Master.
is needed. This is different from a General Power of Attorney.

Administrator needs Master’s consent for sale of immovable property.

Curator needs Master’s consent for sale
of immovable property.
PROFESSIONAL ASSISTANCE REQUIREDNone required. A social worker may assist.Not a requirement. 

Assistance of a social worker
or attorney may be helpful.

A psychiatrist must be consulted and must produce a report.
An attorney should be consulted since this is a High Court application.

An advocate is appointed to investigate the matter and make recommendations. 

A psychiatrist must be consulted and must produce a report.
POWER GRANTED TO 3RD PARTYA trustworthy family member is best. 

Person has authority to carry out financial transactions for the ailing individual.
A trustworthy family member is best. 

Could also be a social worker or attorney but additional costs will then be incurred.

Person has authority to carry out financial transactions for the ailing individual, and may make decisions regarding
daily life, e.g. a move into a care facility.
A trustworthy family member is best. 
An attorney or accountant may be appointed, especially if there are many financial and other transactions to be done. May also be necessary if the closest family members are not in South Africa, or if there is a lack of trust among the family members.
CONVENIENCE OF PROCESSEasy and quick process.Relatively easy and quick process. Administrative order granted by Master on Master’s acceptance of documents presented.Longer process because of investigations required and medical reports needed. Can take a few months to be concluded.
RISKSPerson holding Power of Attorney could abuse the power granted to them.
No legal protection provided.
Protection of immovable property through endorsement on Title Deeds
at Deeds Office.
Court investigates trustworthiness
of person to be appointed as Curator. Appointee may be required to provide security should unnecessary expenses arise.
COSTSNegligibleSignificantly less costly than the appointment of a Curator.

Costs for psychiatrist’s examination and drafting
of report.

May involve small legal fee
if an attorney is consulted. 
Large legal and medical costs may be incurred because this is a High Court application.

• Published in the April 2024 issue – Click here to start reading.

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