Mrs Sonja Smith, Mr Rian Jansen Van Rensburg, Dr Hannetjie Van Zyl-Edeling, Neels Coertse, Mrs Aderyn Exley and Prof. Ricky Snyders at the 22nd South African Psychology Congress held at Emperors Palace, Johannesburg on Friday 23 September 2016
We presented lectures at the 22nd South African Psychology Congress held at Emperors Palace, Johannesburg on Friday 23 September 2016 on the topic: THE COURAGEOUS CONVERSATION SYMPOSIUM: BE MINDFUL OF YOUR LEGACY. It is estimated that about 70 psychologists attended this specific symposium. You can have a look at PsySSA's website by clicking on this link.
I presented a lecture on the law relating to powers of attorney. You can read my notes below:
COURAGEOUS
CONVERSATIONS LECTURE CJC
Presented
at the 22nd South African Psychology Congress in Emperors Palace on
23 September 2016
THIS DOES NOT CONSTITUTE LEGAL ADVICE.
PLEASE CONSULT YOUR ATTORNEY ASAP!
·
Thank you for the invitation.
·
My presentation will focus on a very, very
narrow aspect of the law of agency:
o
Parents suffering from dementia.
·
Spherical
approach
·
The
Law of Agency
·
Power of
Attorney
o
What is a power of attorney?
§ General
power of attorney.
§ Special
power of attorney:
·
Example: to pass transfer.
o
How is it obtained?
o
Does a power of attorney terminate?
§ Let us
quickly look (remember just on the surface) at the legal relationship between
you and your aging parents.
§ Once
again there are rules and exceptions to these rules/principles.
§ Of
course an agent may renounce the power given to him.
§ Death
or change of status of the agent [that is you]?
·
One example: insolvency of your estate?
o
End of your authority to act on behalf of
someone else.
§ Death
or change of status of the principal [that is your dad].
§ Change
of status. What does that mean?
§ At
time when the power of attorney was signed, the principal [your dad] was
mentally incapable of understanding what he was doing, the authority is of
course non-existent.
§ The
case of supervening mental incapacity is much, much more difficult [the case
where he started to suffer from dementia
and the progression of this illness].
§ Your
parent starts to suffer from dementia, not much, but you notice something is
not right. I venture to state that the entire relationship between you, your
siblings, other family members and your father and/or mother change forever.
§ What
does the law have say about this fundamental change in relationship?
§ Let's
look at what happens on ground level (according to our law as it stands this is
illegal and not to be encouraged):
·
The agent (mostly a child with the power of
attorney to act on daddy’s behalf) continuous to act.
·
This state of affairs is rather dangerous.
·
Your dad for instance is now completely
"gone" and you continue to act in terms of your power of attorney.
·
Your estate is sequestrated or to begin with,
you were an insolvent when you got the PA.
·
Or your estate is subsequently sequestrated:
your actions are null and void and can be attacked in court.
·
Or, you are solvent and you continue to act
although your dad is "gone".
§ The
current law in SA is that the PA came to an end and all of your actions can be
attacked in court.
§ Application
in terms of the Mental Health Act. This a route that I don't recommend.
§ The
other route is an application in the High Court in terms of Rule 57 with the
heading: De lunatico inquirendo
appointment of curators in respect of persons under disability and release from
curatorship.
§ Expensive
court application.
§ Time
consuming.
§ Two
appearances.
§ The SA
LAW COMMISSION is presently (for a very long time already and not near to
completion) is looking into the matter.
§ Maybe
one day we will have an enduring power of attorney. I think it is necessary.
§ Are
there possible solutions?
·
Yes.
o
Enter into an agreement with your dad the terms
and conditions maybe:
§ You
are “employed” to do certain things for him.
§ To
continue with his business [you are now the business manager taking care of the
business].
§ You
are compensated for your “services.”
§ Have
it tailor made for your specific circumstances.
·
Short
list for further reading & some aspects that need further investigation:
o
Signing Powers in General [for private
individuals and not for corporate or government officials].
o
Consent to Disclose Medical Information & DNR
(Do Not Resuscitate) And South African Medical Association Living Wills a nd
Advance Directive
o
Trusts [Alter
Ego Trusts]: Badenhorst V Badenhorst Case:
o
Estates Administration: SA Law Commission
Report:
o
SA Law Commission: Assisted Decision-Making:
Adults With Impaired Decisionmaking Capacity:
o
Convention on the Rights of Persons with
Disabilities and Optional Protocol:
o
Domestic Partnerships: Same Sex Relationships;
Cohabitation Relationships SA Law Commission Report:
PRESENTED BY
NEELS COERTSE
011 783 2248
084 456 1030
They very graciously gave me a certificate of Presentation:
