In this new series of columns by local attorney Jonathan de Jager, legal issues that ordinary citizens may encounter over the course of their daily lives will be highlighted, explained and discussed. Each column will be devoted to a different topic. With September being World Alzheimer’s Month, the series kicks off with a question related to the care of elderly parents and the management of their affairs when they no longer have the mental capacity to make personal arrangements or financial decisions on their own.
My mother has been living with Alzheimer’s for a number of years and has deteriorated badly these past few months. I know my father left her some money, and I want to make sure that this money is correctly used for her care. But am I allowed to take over control of her affairs?
Our law does allow for a person to take over control of the personal affairs of another. However, this is not a quick process, as the law must make sure that a person’s independence and responsibility for their financial position and health is not willy-nilly passed to another. Where a person no longer has the mental capacity to manage their own affairs as a result of an illness such as Alzheimer’s, our courts can be approached for assistance to transfer the management of the person’s affairs to another.
An application for a court to appoint a curator for the person or property of someone who is of unsound mind and/or unable to manage his/her own affairs, can be made by any person who has a direct interest in the matter and must be supported by an affidavit. The affidavit will usually be supported by three further affidavits: an affidavit by someone who knows the patient and is familiar with the patient’s mental state, and two further affidavits by a medical practitioner and a psychiatrist, reporting on the medical condition of the patient and their opinion of whether the patient is incapable of managing his/her own affairs.
When a family member brings such an application to court, it does however not automatically mean that the family member will be appointed as the curator of the patient’s estate or person, and the court may decide to appoint a different curator. The family member will have to provide the court with good reasons as to why they are a suitable candidate to take over the affairs of the patient and/or make decisions regarding their person.
Where a curator has eventually been appointed over the affairs of a patient, such a patient is consequently regarded as unable to undertake any legal transactions and can only create legally binding transactions or take decisions through the court-appointed curator.
In your situation, you would be able to approach a court to request that you be appointed as the curator, both of your mother’s estate and her person, in order to take decisions regarding her future medical treatment and care. As this is a complex process and will require appropriate medical reports to be obtained, it is important that you approach your lawyer for assistance with this process.
De Jager Attorneys is based at Office 4, Co.Unity, 18 Royal Street, Hermanus. Jonathan de Jager (B.Com Law (UP), LLB (UP) can be contacted on 064 747 0345 or firstname.lastname@example.org. Visit www.dejagerattorneys.com