It isn’t easy when one realizes that the Mental Health of your parent is deteriorating. As a result your mom/dad can no longer manage their finances. Naturally, you do not know what to do. On the one hand, you do not want to accept that your parent is becoming older and frailer. On the other hand, you want to protect them and have concerns about their legal actions?
General power of attorney
When your parent is still of sound mind, your parent can give you a general power of attorney. This will enable you to transact business on his/her behalf. The rights you will have in terms of the General Power of Attorney will typically include the right to do
- banking and investments,
- buy and sell shares and immovable property and to
- pay expenditures on your parent’s behalf.
The general power of attorney will save your mom/dad a lot of trouble. They no longer need to go to the bank, visit a broker, or do shopping. You must, however, always act in good faith and your parents best interest. You are also accountable to your mom/dad for your actions.
When does a power of attorney expire?
Unfortunately, in South Africa, your parent cannot give you an “enduring” power of attorney. It means that when your mom/dad no longer has the mental capacity to appreciate the consequences of a power of attorney or withdraw it, it will lapse. You can then no longer rely on it. If you do continue to use the power of attorney once your parent is mentally incapacitated, you may attract delictual liability for any loss that they may suffer.
When your parent is no longer of sound mind, you will have to either apply for the appointment of an administrator in terms of the Mental Health Care Act, 2002, or approach the court to appoint a curator bonis to administer your parents’ finances.
The process in terms of the Mental Health Care Act, 2002 is much cheaper and more accessible than the process you have to follow to ask the court for relief, but you can only take this route if your parent has a “mental illness” as defined in terms of the act.
What is mental illness?
For purposes of this article, “mental illness” means an illness as defined in the Mental Health Care Act, 2002. It includes diseases like Alzheimers and dementia. You will require a letter from your parent’s health care professional that explicitly confirms that your parents have a mental illness as set out in the Mental Health Care Act, 2002.
Approach the court for the appointment of a curator bonis.
This process is expensive and often takes a lot of time to finalize. In terms of our common law, the High Court may declare a person incapable of managing his/her affairs and appoint a curator to manage the affairs when a person is:
- mentally ill or deficient;
- a person, who is owing to physical infirmity cannot control their affairs; or
- declared a prodigal.
If you need assistance to submit the documents, or want help to complete the forms, or wish to instruct us to administer the estate on your behalf, please register as a client and follow the online application process.