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alzheimers grandpa with child

The law allows each individual person who is a major and over the age of 18 years of age to manage and control their own affairs and finances; but what happens when they cannot do so?

We received this query a week ago.

“My mother has been living with Alzheimer’s for a number of years now. She has always been very independent and insisted on managing her own affairs and finances even after my father passed away in 2008. Unfortunately, of late, she has deteriorated very badly, to the point where I am very concerned about her financial situation and her care. I know my father left her some money, and I want to make sure that this money is correctly used for her care and wellbeing. 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. Of course, 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 on to another; especially if they have not consented to that situation. In the ordinary day to day situation you can give someone a power of attorney to conduct your affairs or some of them and that is a voluntary act; which you can always revoke. 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.

In this latter instance, High Court Rule 57 governs the procedure for one to bring a court application 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 (“the patient”). The application can be made by any person who has a direct interest in the matter and must be supported by an affidavit with all the required and necessary information for the court to make an informed decision. 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.

The court will be asked to firstly appoint a curator ad litem (usually a practising advocate or an attorney) whose duty it is to manage the patient’s interests in court. The curator ad litem must interview the patient and consult with the proposed curator and draft a report, which together with a report by the Master of the High Court, will assist the court with the decision on whether or not to appoint a curator bonis (person who manages the patient’s estate) and/or a curator personae (person who is responsible for and takes decisions in respect of the physical person of the patient, e.g. hospitalisation, medical care etc). 

This appointed curator may be a family member or a court-appointed curator. When a family member brings such an application to a court, it does not automatically mean that the family member will be appointed as the curator of the patient’s estate or person. The family member will have to furnish reasons to satisfy the court as to why they, in particular, are a suitable candidate to be appointed to take over the affairs of the patient and/or to make everyday decisions regarding their person and their day to day wellbeing.

Where a curator has been appointed over the affairs of a patient, such a patient is deemed unable to undertake any legal transactions and can only create legally binding transactions or take decisions through the court-appointed curator. Where a mental illness is of a temporary nature, the patient can make an application to a court requesting the termination of the curatorship by providing reasons as to why the court should terminate the curatorship and allow the patient to assume responsibility for his or her own affairs.

In the situation of the lady who sent us the inquiry, she would be able to approach a court to request that she be appointed as the curator both of her mother’s estate as well as her person, in order to make 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 she should approach her lawyer for assistance with this process.

Please visit our website at www.legaladviceoffice.co.za or send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. and we will respond to your legal queries within 48 hours.

About our author:

Hugh Pollard (Legal Consultant), has a BA LLB and 42 years’ experience in the legal field. 22 years as a practicing attorney and conveyancer; and 20 years as a Legal Consultant.

082-0932304 (Hugh’s Cell Number)

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.legaladviceoffice.co.za

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