It is obtained through Court proceedings. The curators may be spouses, parents, children, in cases where the people mentioned are missing, the judge may choose another person as a curator or the representative of the institutions where the older person lives. The curatorship may be awarded on a temporary basis (Jusbrasil, 2018).

References:

Jusbrasil. (2018). Saiba o que é e como ocorre a Interdição de Idoso. Jusbrasil. https://beatriceekarlalopes.jusbrasil.com.br/artigos/573034226/saiba-o-que-e-e-como-ocorre-a-interdicao-de-idoso

Two legal procedures are in place pertaining to protect the property and affairs for mentally incapacitated persons and their carers. According to the Enduring Powers of Attorney Ordinance (Cap. 501), a “committee” normally be a relative, professional, or official solicitor can be appointed through the court when an older person suffering from dementia cannot manage his or her financial affairs. According to the Mental Health Ordinance (Cap. 136), an application by a relative, social worker, or medical practitioner must be made to the guardianship board to deal with the welfare and physical care for mentally incapacitated persons. The guardian has significant power over the mentally incapacitated individuals, including their residence, medical and dental treatments (Ko, 2019, March 26).

References:

Ko, B. (2019, March 26). Ageing Hong Kong needs better laws to protect the elderly and dementia sufferers. South China Morning Post. Retrieved from https://www.scmp.com/comment/letters/article/3003142/hong-kongs-population-ages-it-needs-better-laws-protect-dementia

This section to be updated soon.

Provision exists to support decision-making. According to the legal requirements for curatorship listed previously, its award starts with the day of the judgment. No time duration is not mentioned, thus we can assume that it is awarded permanently, unless revoked.

While curatorship/power of attorney does not apply to persons with dementia in Jamaica, once the issue of mental capacity is raised before the court by the relative which legally has the right to do so, and this relative is deemed suitable and is appointed by the Resident Magistrate’s or Supreme court over the affairs of the patient, he/she is expected “to do all such things as appear to be necessary or expedient in the interest of and for the maintenance and benefit of the patient; and where it is deemed necessary also for a relative or dependant of the patient” (The Mental Health Act, 1997).

This includes the authority and ability to:

• Transfer, vest, sell, lease, rent or exchange property
• Acquire property in the name of or on behalf of the patient
• Settle property by way of gift
• Execute a will on behalf of the patient
• Fulfil any of the patient’s contractual obligations
• Pay any debts incurred by the patient
• Continue or institute any legal proceeding on behalf of the patient
• Exercise any power of attorney vested in the patient
• Handle all financial affairs of the patient (The Jamaica Gleaner, 2013).

While this ‘guardianship’ of a person lacking mental capacity can be provided by the court to the ‘closest relative,’ it should be explained that in Jamaica, as in Trinidad and Tobago, power of attorney does not apply to a person lacking mental capacity. This is because legally, a person must be capable of understanding the nature and effect of the power of attorney he is purporting to grant, i.e., he must be deemed to have mental capacity. If a person, like a person living with dementia, lacks mental capacity to create a power of attorney, and this is discovered after the power of attorney has already been granted, then the power of attorney becomes invalid and any transaction between the attorney and a third party would be void. The fact that neither the attorney nor any third party was aware of the person’s mental incapacity is irrelevant” (Myers, Fletcher & Gordon, 2014).

References:

Myers, Fletcher & Gordon (2014). Powers of Attorney. Available from: https://www.myersfletcher.com/resources/item/powers-of-attorney.html

The Jamaica Gleaner (2013). Caring for the elderly, 6 May 2013. Available from: https://jamaica-gleaner.com/gleaner/20130506/flair/flair6.html

The Mental Health Act. (1997).  Available from: https://bellevuehospital.org.jm/pdf/mental_health_act.pdf

For the curatorship/power of attorney obtained to take place, a resolution dictated by a competent authority is needed. A comprehensive assessment of the physical and mental situation of the older adult has to be performed in order to exclude other ailments or temporary conditions such as delirium, where usually there may be an underlying cause, and that once treated, disappear.

The PPPR act (Parliamentary Counsel Office, 1988) outlines the requirements for nominating an Enduring Power of Attorney (EPOA) or a court order for those deemed incapable and do not have an EPOA in place.

EPOA

If meeting the threshold for the presumption of competence (section 93B(1)), an attorney can be nominated by an individual to act on their behalf should they lose the capacity to do so.

Welfare guardian

If the individual is deemed to lack the capacity to make personal care/welfare and/or property decisions and does not have an existing EPOA in place, an application can be made to the family court to decide on “the least restrictive intervention…having regard to the degree of that person’s incapacity” (Section 8). The court can make a range of orders including:

• An order appointing a welfare guardian and/or property manager (the equivalent of an EPOA),
• an order that the person be provided with living arrangements of a kind specified in the order and be required to reside there,
• an order that the person be provided with medical advice or treatment of a kind specified in the order.

 References:

Parliamentary Counsel Office. (1988). Protection of Person and Property Rights Act 1988. New Zealand Legislation website. Available from: http://www.legislation.govt.nz/act/public/1988/0004/latest/whole.html.

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.