Protecting the Elderly – Using the Power of Attorney vs Curatorship
Protecting the vulnerable in the community is essential in any society. It is not only women and children who are the subject of society’s to abuse but the elderly too.. It is those who have loved and cared for us who become the target of anger and frustration who need special care and looking after. How do we protect these folk
The Power of Attorney (PoA) was originally developed for business purposes, where the principal appoints an agent to act on his behalf. However the PoA is invalid once the principal is no longer fully capable of understanding it. For this reason, the PoA is only of use, in the case of dementia, in the early stage. Once it becomes invalid, it may be necessary to opt for administration or curatorship. In these cases, it does not allow for occasional capability (lucid intervals).
The Curator route is via a high court application for the such appointment, in terms of common law. There are two forms of curatorship and one or both may be appointed:
- the curator bonis administers the person’s property, including the finances, he
- the curator personae takes personal decisions for the person. This involves serious curtailment of the person’s rights and freedoms and the court is therefore not easily persuaded to grant such an appointment.
The court requires two medical reports, one of which must be from a psychiatrist. It is important to mention that curatorship does not give as many powers as people imagine. For example, a curator has no locus standi to institute an action for divorce on behalf of a person declared to be mentally ill. Nor can a curator make a will or exercise parental authority on behalf of such person.
An important point is that appointing a curator can strip the person of feelings of self-worth, to the extent that it can trigger a rapid decline.
The Mental Health Care Act (17 of 2002), which came into effect on 15 December 2004, allows for the appointment of an administrator to manage the person’s property. This Act applies only to the mentally ill and to those with severe or profound intellectual disability.
It is not necessary to go to the high court for this as you can apply direct to the Master of the High Court. A mental health care practitioner who could be a general practitioner and not necessarily a psychiatrist – certifies that the person suffers from an illness or disability relating to mental health. .
The Master requires proof that the person has seen the application and had the opportunity to object to it.
The cost and duration of the application depend on the person’s assets:
- with capital assets less than R200,000 or income of up to R24,000 pa, it‘s quick and there are no costs, other than those incurred to obtain the medical evidence required for the application.
- above that, the Master is obliged to appoint an interim administrator and cause an investigation to be conducted. The investigator looks at every aspect: finances, medical, family and the applicant him/herself, then makes a recommendation to the Master. In this case the costs payable to the investigator are negotiated by the Master, and are payable out of the estate
Appointment of an administrator is generally much cheaper than obtaining curatorship, but be aware that less extensive cover is granted than in curatorship.