Peo­ple with a men­tal illness are par­tic­u­larly at risk of fall­ing vic­tim to con artists, writes An­gelique Ruz­icka

CityPress - - Business -

So, where can you get help and is there a sys­tem in place to give you sup­port? It’s cur­rently pos­si­ble to take over the fi­nan­cial af­fairs of your par­ents if they al­low you to, but as soon as they be­come men­tally ill, this all falls away.

“This power of at­tor­ney pro­vides you with the right to trans­act on their be­half when they are not phys­i­cally present, but what many peo­ple do not re­alise is that, as soon as the per­son grant­ing the power of at­tor­ney lacks men­tal ca­pac­ity, the power of at­tor­ney is null and void. To con­tinue to act on it amounts to fraud,” says Macpher­son.

In coun­tries such as the UK, rel­a­tives or car­ers are able to ob­tain “en­dur­ing power of at­tor­ney”, which con­tin­ues to be valid if the grantor be­comes men­tally in­ca­pac­i­tated, but it must be granted prior to the men­tal in­ca­pac­ity.

“Un­for­tu­nately, this concept is not ap­pli­ca­ble to South African law. It could solve many prac­ti­cal prob­lems, at a small cost,” adds Macpher­son.

But there is a rea­son power of at­tor­ney doesn’t con­tinue af­ter a men­tal illness is di­ag­nosed.

“Time and again, we see the abuse of pow­ers of at­tor­ney by chil­dren who ma­nip­u­late their par­ents to ben­e­fit them­selves – of­ten at the ex­pense of si­b­lings – and, at times, they even bla­tantly steal from their par­ents.

“It must be ac­cepted that those who lack men­tal ca­pac­ity are ex­tremely vul­ner­a­ble and thus strict mea­sures are in place to pro­tect them,” says Macpher­son.


If your par­ent is no longer men­tally ca­pa­ble of mak­ing de­ci­sions, there are two op­tions. Firstly, you can ap­ply to the high court to have your par­ent/s placed un­der cu­ra­tor­ship.

“This is a com­plex and costly process, re­quir­ing com­pelling med­i­cal ev­i­dence as well as the ser­vices of an at­tor­ney and an ad­vo­cate. This could cost tens of thou­sands of rands in le­gal fees,” ex­plains Macpher­son.

The other op­tion is to ap­ply for an ad­min­is­tra­tion or­der in terms of sec­tion 60 of the Men­tal Health Act.

“This would be the cheaper route, but the ad­min­is­tra­tor’s pow­ers are more lim­ited than the cu­ra­tor’s, and it is nec­es­sary to re­port to the Mas­ter of the Court on an on­go­ing ba­sis,” adds Macpher­son.

Another pos­si­ble so­lu­tion is to en­sure that as­sets are held in trust prior to your par­ents need­ing such le­gal in­ter­ven­tion. The trustees would then be able to make fi­nan­cial de­ci­sions with­out the need of a court or­der for the ben­e­fit of your par­ents.

“In the sit­u­a­tion where all the si­b­lings are em­i­grat­ing and the par­ent is be­ing left be­hind, it may be worth it to se­ri­ously con­sider this op­tion and get le­gal ad­vice on it,” says Macpher­son.

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