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My mother’s sick. Can I manage her personal affairs?

My mother has been living with Alzheimer’s for a number of years. She has always been very independent and insisted on managing her own affairs even after my father passed away. 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. 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 to another. 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.

High Court Rule 57 governs the procedure for 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 information. 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 an advocate or 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 of whether 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 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 the court as to why they are a suitable candidate to take over the affairs of the patient and/or make decisions regarding their person.

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 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 your situation, you would be able to approach a court to request that you be appointed as the curator both of your mother’s estate as well as her person, in order to take 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 you approach your lawyer for assistance with this process.

July 15, 2015
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