If you find yourself in a position where a loved one is diagnosed with a severe or profound intellectual disability, it may be necessary to appoint a third party to manage their financial affairs.
At present, there are two options available for the appointment of a third party to manage the affairs of a mentally incapacitated person. In the first instance, there is the option to bring an application to the High Court for the appointment of a curator bonis which is a cumbersome and expensive process. On the other hand, Section 60 of the Mental Health Act makes provision for anyone over the age of 18 to bring an application to the Master of the High Court for the appointment of an administrator. This is a much less cumbersome approach and is far more cost-effective. Here’s what the process entails.
Understanding mental capacity
To begin with, it is important to understand the link between our law and diminished mental capacity. In terms of our law, if a person is mentally incapacitated – for instance, as a result of a stroke, brain tumour, dementia or injury – that person lacks the capacity to enter into legal transactions on the premise that they are unable to understand the nature and consequences of their actions. As such, any transactions entered into by a person who lacks mental capacity will be considered null and void. As a general rule, anyone aged 18 and over is presumed to be mentally competent to manage their own affairs, and the person alleging otherwise bears the onus of proof.
Curator bonus versus administrator
As mentioned, the common law appointment of a curator bonis is expensive and cumbersome, whereas an application for the appointment of an administrator is relatively simple and does not require the services of an attorney. What is important to note, however, is a Rule 57 appointment of a curator bonis can be brought where a person is either mentally or physically incapacitated. On the other hand, the appointment of an administrator can only be brought where the person is mentally or intellectually incapacitated, which means that such an application cannot be brought where a person is physically incapacitated but mentally sound. To bring an application for an administrator, it must be proved that the mentally incapacitated person meets the criteria set out by the Mental Health Care Act in terms of diagnosis and medical evidence.
The decision to appoint a third party to manage a loved one’s affairs is not one that should be taken lightly and, as such, our law requires that the person’s diagnosis meets the definition of ‘mental illness’ in terms of the Mental Health Care Act, being ‘a positive diagnosis of a mental health-related illness in terms of accepted diagnostic criteria made by a mental health practitioner authorised to make such diagnosis’. When bringing an application for the appointment of an administrator, you will need to provide medical certificates and reports by mental health care practitioners in support of your application, and this evidence needs to clearly indicate that the person cannot manage their own affairs as a result of the mental illness or disability.
To begin the application process, you will need to fill out Form MHCA 39 which is the formal application required in terms of the Mental Health Care Act. You should also have medical certificates from at least two independent mental health practitioners as evidence of the diagnosis and prognosis. If the person bringing the application is not the spouse or next-of-kin of the patient, they will be required to explain why they are bringing the application. You will further need to include details of the patient’s assets, property and income, and provide details of the person you feel would be best suited to manage the patient’s affairs.
It is important to note that where the estate of the patient exceeds R200 000 in value or their income is greater than R24 000 per year, the Master will order that an investigation into the patient’s estate takes place. The costs of this investigation, which can be no greater than R15 000, is paid from the patient’s estate. Very importantly, the applicant must provide proof that the patient has received a copy of the application. This is to ensure that no malicious applications are brought and to ensure that the patient’s rights are protected. Once satisfied with the medical evidence and investigation, the Master will provide the administrator with the authority to manage the patient’s affairs.
The role of the administrator
The primary role of the administrator is to act in the best interests of the patient and to assist them in managing their affairs. To this extent, our law recognises that the mental capacity of the patient may differ from day-to-day depending on the diagnosis, and that the administrator’s function should be proportionate to the patient’s mental health status, keeping in mind that the patient’s needs may change as and when the illness progresses. This means that the administrator is required to consult with the patient on all decisions where possible and to ensure that the privacy and dignity of the patient are respected. The administrator is also required to keep detailed records and accounts, and to ensure that the patient’s assets are not exposed to too much risk.
While you are not required to use an attorney to bring such an application, keep in mind that it is a relatively inexpensive process and should cost between R5 000 and R20 000 in attorney’s fees.