04.05.04.03. How is curatorship/power of attorney obtained? Is curatorship/power of attorney awarded on a temporary basis only? | South Africa

04.05.04.03. How is curatorship/power of attorney obtained? Is curatorship/power of attorney awarded on a temporary basis only? | South Africa

14 Aug 2022

According to South African common law, appointing a power of attorney is only valid for as long as the principal (e.g., older person in need of support in managing their affairs) retains the legal capacity to act. Once the principal loses this legal capacity (i.e., due to mental illness, intellectual disability, or disease like dementia), the power of attorney lapses (Marilyn, 2015; Meyer, 2016), and is of no value to the person living with dementia. Despite calls for reform to legislation, the options for persons living with dementia currently exist: (1) applying to the High Court for the appointment of a curator (which is very expensive and inaccessible to most South Africans); and (2) applying for the appointment of an administrator via the Mental Health Care Act, 17 of 2002 (Meyer, 2016, pp. 4-6).

References:

Marilyn, H. (2015). Alzheimer’s – “The window of opportunity.” YE! Available from: https://youve-earned-it.co.za/finance/alzheimers-the-window-of-opportunity/

Meyer. (2016). Legal positions of persons incapable of managing their own affairs.