NO POWER TO ACT

More than 15 years after the South African Law Commission launched a project to look into the legal position of mentally incapable adults and their families, there is still no cheap way for these families to manage their loved ones’ affairs. Although you can get a power of attorney to act on behalf of a frail parent or relative, as soon as that person loses the mental ability to grant the power of attorney, it is no longer legally enforceable.

Families then need to approach the High Court to have a curator appointed for their mentally incapacitated relative, a process that can cost R100 000, Louis van Vuuren, a senior manager of private clients at Maitland, says.

In practice, many families continue to use the power of attorney.

Eight years after the Law Commission’s project was launched in 2001, draft legislation was proposed in Parliament suggesting various alternatives. A revised draft bill was presented first in 2013 and then again in 2014 and 2015, but Parliament has yet to deal with the bill, Van Vuuren says.

Van Vuuren says seven percent of the population is affected by mental incapacity and the lack of a cheap and easy way for their families to deal with their affairs “has not given rise to a single moan, headline or even a lofty election promise”.

“The plight of the mentally disabled has gone to the bottom of the legislator's pile. It is up to individual citizens to approach the courts for assistance, because antiquated legislation fails to protect the most vulnerable ones,” he says.