POWER OF ATTORNEY:

IT'S NOT WHAT YOU THINK

The time may come when – due to old age, an illness, stroke or dementia – a loved one no longer has the mental capacity to manage their own finances and estate. Many people believe either a general or special power of attorney will entitle an agent, such as a close family member, to act on an incapacitated individual’s behalf. What they don’t realise, however, is that under South African law, if someone is no longer capable of making their own decisions, the power of attorney will fall away.

This commonly held misconception of the enduring nature of a power of attorney may be partly attributable to the fact that in certain jurisdictions, such as the UK, Canada, Australia and New Zealand, it is possible to grant power to an agent that will remain in force despite incapacity.

Under our law, however, the agent can never have more powers than the principal, so if the latter is no longer of sound mind, the agent’s power of attorney will become void. This clearly leaves those looking after a loved one who has lost mental capacity in a predicament, for example, if funds need to be accessed to provide for the individual’s personal care.

Under the South African legal system, where an existing power of attorney has lapsed as a result of physical or mental incapacity, a potential solution is to apply for the incapacitated person to be placed under either curatorship or administration.

APPOINTMENT OF A CURATOR

An appointed curator can deal with the finances of a person lacking in capacity. An application must be made in terms of Rule 57 of the High Court Rules for the appointment of a curator. This can be a costly process.

There are essentially two kinds of curator that can be appointed on behalf of someone who is mentally incapacitated. The first is a curator bonis. This person – typically an attorney of the High Court or someone that the High Court deems fit to fulfil this function – will administer the property of the incapacitated person under curatorship. The second is a curator personae – someone who attends to and looks after the daily needs of the incapacitated person themselves.

The process of applying for curatorship is a complicated one. Once the curator has been appointed, this person has a high duty of care, and curatorship accounts must be submitted annually to the Master of the High Court. These accounts must clearly set out the income and expenditure for the period, together with supporting documentation.

APPOINTMENT OF AN ADMINISTRATOR

An alternative option would be to apply to the Master of the High Court in terms of the Mental Health Care Act, which provides for the appointment of an administrator (not a curator) to administer the property of the person who is mentally incapacitated.

The main difference between a curator and an administrator is that curatorship can be applied to any situation where an individual is incapable of managing their own affairs, whereas administration applies specifically to persons who have been diagnosed as mentally ill or as suffering from a severe or profound intellectual disability.

The option of administration under the Mental Health Care Act is generally only available to persons with assets valued at less than R200 000, or with an annual income of less than R24 000. The Master does, however, extend this type of application to estates exceeding these prescribed values, but on a case-by-case basis.

DISCRETIONARY TRUST

As part of overall estate planning, the use of a discretionary trust may in certain instances sidestep the complexity of appointing a curator or administrator. This may be particularly useful in instances where there are elderly parents and a family history of, for example, strokes or dementia.

In such cases it may be worthwhile for these individuals to consider donating assets – while they are still of sound mental capacity – to a discretionary trust of which they are also beneficiaries. Although such donations will typically be subject to donations tax, the latter will in effect constitute payment of estate duty in advance. This has certain estate planning benefits – see our article on this here.

The elderly parent can remain a trustee of the trust, but the deed can stipulate that this person will cease to be a trustee should he or she become mentally or physically incapacitated. A replacement trustee can then be nominated.

Once the assets are in the trust, the trustees can provide for the elderly parent who donated his or her assets while still of sound mind. The mental capacity of the donor will then have no negative effect on how the assets are managed and applied as this will remain under the control of the other trustees to be utilised for the benefit of, for example, the incapacitated beneficiary.

UPDATING YOUR WILL

Everyone should keep their wills updated, especially when circumstances change. Individuals who become compromised in terms of handling their own affairs may thereafter be unable to sign a new, valid will. Spouses can balance their estates from time to time, or set up an independent, separate fund or bank account for the other spouse – ensuring that one spouse will have access to funds if the other becomes mentally incapacitated and a power of attorney lapses.

Trust deeds should be updated to make provision for succeeding trustees should an existing trustee no longer be able to act on his or her own. Provision should also be made in the trust deed that the number of trustees won’t fall below the minimum requirement should one trustee have to vacate his or her position. The trust deed should in addition stipulate that the founder won’t have to agree to amendments should he or she become unable to act legally.

If you’d like to discuss or implement any of these proposed solutions, or if you need a trust deed reviewed, please don’t hesitate to contact one of the Sanlam Private Wealth fiduciary and tax specialists at fiduciary@privatewealth.sanlam.co.za.