Dementia and Power of Attorneys


By : Bean du Plessis

With the advantage of increased longevity, came the disadvantage of an increase in the number of people diagnosed with dementia and other mental in-capacities.

Many patients, when first diagnosed with such illnesses, will revert to grant a loved one with a “Power of Attorney”, in order to enable them to manage the affairs of the patient.

Patients should note, that the authority of an agent (even armed with a power of attorney) is limited to the patients authority and capacity. In short, an agent cannot perform any action, his principal cannot perform himself/herself. The Power of Attorney would terminate once the patient is incapacitated and any action undertaken under its auspices, would be unlawful.

Traditionally the patient would have had to wait for the full onset of dementia, trusting that their relatives would engage the very expensive and complicated machinery provided by Rule 57, to have a curator bonis appointed.

Patients with smaller estates are granted the benefit in that any interested person may approach the Master of the High Court directly under the auspices of the Mental Health Care Act.

Both procedures, however, requires the incapacity of the patient, before setting the machinery of law into action, leaving the patient with no control over his/her future.

The “Special Trust”created by the Income Tax Act, appears to be the only pro-active solution in the legal armoury of the patient. These trust will grant the patient the advantage of appointing his/her own trustees to manage his/her affairs as well as the opportunity to define the powers of these trustees. The trust is also allowed certain exemptions by the Income Tax Act.

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