Our law requires that parties to legal agreements must have the necessary mental capacity, i.e. be able to understand the nature, purpose and consequences of their actions.
This article will demonstrate what is required when a person with diminished mental capacity, resulting from mental illness, brain injury, a stroke, dementia, incapacity related to aging in general, or where a person, incapable of managing his/her own affairs, wishes to conclude certain transaction such as selling or buying immovable property.
A POWER OF ATTORNEY MAY NOT BE SUFFICIENT
A common misconception is that people assume that granting a power of attorney to a loved one or a professional adviser will enable that person to manage investments and transactions on their behalf, should they lose the ability to manage their own affairs due to diminished mental capacity.
A power of attorney is only competent in cases where a person is temporarily or briefly unable to fulfil certain legal actions (e.g. they are out of the country or in hospital for an operation) and can be helpful if an elderly or frail person, who is able to handle his own affairs and understands the nature and consequences of those actions, simply wishes to slow down and hand over the responsibility to a trusted third party, their agent.
For a power of attorney to be valid and exercisable, the principal has to be legally competent and have the necessary mental capacity in the first place. As soon as the principal becomes incapable of acting on their own behalf, or dies, the power of attorney automatically lapses, the reason being that an agent cannot have more power than the principal.
It is unlawful to exercise a power of attorney that has lapsed. For example, if a person gave someone a power of attorney to sell their property while they were healthy and mentally sound, but the transaction took place after the principal’s mental capacity had diminished (in other words they would not have been able to make the decision themselves) the transaction would be unlawful and the agent would be guilty of a fraudulent act. South African law does not recognise an enduring power of attorney.
APPOINTMENT OF A CURATOR OR ADMINISTRATOR
There are two legal procedures available in our law that allow for a person to take over control of the personal affairs of another who is of unsound mind or does not have the necessary mental capacity to handle his/her own affairs:
The common law, in terms of Rule 57 of the Uniformed Rules of the High Court, allows the High Court, in whose jurisdiction the person concerned lives or in which they own property, to appoint a curator bonis to perform or execute a particular act on his/her behalf in respect of his/her property or to manage or look after such person’s property (this curator protects the patient’s financial and proprietary interests).
The application to the High Court for the appointment of a curator bonis, is brought by way of a Notice of Motion and supporting affidavit by an interested person such as a family member, and sets out the facts and circumstances relied on to show that the person is of unsound mind and incapable of managing his/her affairs. The Application will also need to include two medical reports, one of which shall be from a psychiatrist, confirming that the individual is mentally incapacitated and incapable of managing his/her estate.
Upon hearing the application, the court will first appoint a curator ad litem (usually an advocate or legal practitioner of that court) to investigate the matter fully and who will need to submit a written report of his/her findings to the court and the Master.
The curator ad litem will interview the person, medical practitioners and others with knowledge of the person’s circumstances and submit a report, which is supplemented by the Master of the High Court’s report. The curator ad litem is also responsible for recommending the appointment of a curator bonis, who will ultimately take control over the person’s property and estate.
The appointed curator bonis is often an attorney, accountant or other like professional, rather than a family member, as the duties are onerous and may be too much for someone who is also providing personal care to their loved one. A curator bonis must also furnish security to the Master of the High Court, as a guarantee for doing the job properly. Practicing attorneys hold Fidelity Fund certificates that satisfy this requirement, and are thus ideal candidates for the curators bonis.
The curator bonis, once appointed by the Master, shall administer the estate of the individual in accordance with the powers and functions granted by the court. The curator bonis is accountable to the Master of the High Court and is required to submit annual accounts, detailing all income received, expenditure incurred and providing all vouchers and receipts for transactions made for or on behalf of the incapable person.
In regard to immovable property of the mentally incapacitated person, section 80 of the Administration of Estates Act, 66 of 1965 stipulates that the curator bonis shall not alienate or mortgage any property that he/she has been appointed to administer unless he/she has been authorised thereto:
- by any will or written instrument by which he/she has been appointed as executor; or
- by the Master of the High Court where the value of the particular property to be alienated does not exceed the amount determined by the Minister from time to time by notice in the Government Gazette (currently R100,000) and if the alienation would be in the interest of the mentally incapacitated person (section 80(2)(a) of Act 66 of 1965); or
- by the High Court where the value of the immovable property concerned exceeds the amount determined by the Minister from time to time by notice in the Government Gazette (currently R100,000).
A curator bonis receives a modest remuneration for his services in this regard and is entitled to a maximum annual fee of 6% on gross income generated from the assets, and a once off fee of 2% of the capital on the date the curatorship ends. These fees are deducted from the estate they control and will be monitored and approved by the Master.
Since the appointment of a curator bonis involves a High Court application, this procedure is relatively expensive, with the average costs ranging between R60 000 and R80 000, and is rather cumbersome (in that all steps taken by the curator bonis must first be approved by the Master of the High Court or the High Court itself). The medical costs are also substantial. These costs are usually paid by the estate of the person in respect of whom the curator bonis is appointed.
A curator bonis may also be appointed in situations where a person has full mental capacity but that person has, for example, a gambling addiction or a substance dependency and as a result thereof squanders his estate, and is declared a prodigal.
A curator bonis is concerned only with the financial affairs of the person. Where the person is incapable of managing his/her own personal affairs, and day to day living or welfare, the court can be approached to appoint a curator ad personam – a curator for the person.
The second option is an alternative and simpler procedure governed by The Mental Health Care Act, 17 of 2002, whereby the Master of the High Court may appoint an Administrator to manage the property of someone who is mentally incompetent.
This application is only applicable in the case of mental illness or severe or profound disability. The diagnosis will have to be confirmed by medical certificates or reports by a mental health care practitioner. Since a positive diagnosis of mental illness or severe intellectual disability is a prerequisite for the appointment of an administrator in terms of the Mental Health Care Act, persons who are incapacitated from managing their own affairs by reason of physical handicap, serious illness, old age (without any form of dementia such as Alzheimer’s), etc. are excluded from the provisions of the Act, unless they also suffer from a mental health related illness or disability.
Any person over the age of 18 may apply directly to a Master of a High Court for the appointment of an administrator for a mentally ill person or person with severe or profound intellectual disability. The application, brought under oath (i.e. by way of affidavit) must be submitted directly to the Master of the High Court in whose area of jurisdiction the mentally ill person, or person who suffers from a severe or profound intellectual disability, resides and must include all available mental health related medical certificates or reports relevant to the mental health status of that person and to his/ her incapability to manage his/ her property.
In terms of the Mental Health Care Act, it is the Master of the High Court who has the authority to appoint an Administrator who has been nominated by the applicant. The High Court may only make recommendations to the Master in this regard.
If the Master is satisfied that the person is mentally ill or is a person with severe or profound intellectual disability and the capital value of such person’s assets is below R200 000 or income is below R24 000 per annum, the Master may appoint the nominated administrator without any further investigation.
If the value of the person’s capital assets is above R200 000 and the income is above R24 000 per annum, or there are certain allegations in the application that require confirmation or further information is required to support the application, the Master must appoint an interim administrator and must cause an investigation to be conducted before a final administrator is appointed. The Act says the Master has 30 days from the date of submission to arrange for a suitably qualified person to investigate the application in this instance. The investigation must be finalised within 60 days.
In terms of section 63(4)(a) of the Mental Health Care Act, an administrator may not alienate or mortgage any immovable property of the person for whom he or she is appointed, unless authorised to do so by a court order or with the consent of the relevant Master of the High Court.
In light of the fact that no High Court application is required for the appointment of an administrator, the procedure for the appointment of an administrator is far less costly than the common law appointment of a curator bonis. The applicant does not need to work through an attorney, and the application fees charged by the Master in processing the application are minimal, amounting to no more than R2500.
Administrators, like curators, are governed by the Administration of Estates Act and are entitled to their fee of 6% on income from assets and of 2% of the value of the capital when the administration is terminated.
THE GENERAL POWERS OF A CURATOR BONIS AND/OR ADMINISTRATOR
The powers and responsibilities of a curator or administrator are primarily to administer the estate of the person who is incapable of managing their own affairs, and generally include the following:
- To receive, take care of, control and administer all the assets
- To carry on/or discontinue, subject to any law which may be applicable, any trade, business or undertaking
- To acquire, whether by purchase or otherwise, any property, movable or immovable, for the benefit of the estate
- To apply any money for the maintenance, support or towards the benefit of the person; to invest or re-invest any funds etc.
These powers are carried out under the supervision of the Master and the High Court and are subject to the prior consent and approval of the Master.
With specific regard to the sale of immovable property of a mentally incapable person, proof of the authorisation from the Master of the High Court must be submitted by means of an endorsement on the power of attorney to give transfer and the court order must be lodged to prove the authorisation of the High Court.
Naturally, the curatorship or administration of a person’s estate automatically terminates upon the death of that person. The curator bonis / administrator is then replaced with the Executor of the deceased’s estate who will take control of the assets and property of that person.
The general rule is that majors are presumed mentally and legally competent to manage their own affairs until the contrary is proved. When a person becomes incapable of managing his or her own affairs, especially the administration of his or her estate, it is imperative that someone be legally appointed to assist the person who has become incapable, as a general or special power of attorney will not be valid. In terms of our current legal system no person may manage the affairs of another person without the required authority to do so.