People lacking mental capacity are unable to make decisions on their own with regards to their welfare and financial affairs

Transcription

1

2 Motivation General rule is that persons are presumed sane and legally competent to conduct their financial affairs, unless contrary proved People lacking mental capacity are unable to make decisions on their own with regards to their welfare and financial affairs Both commons law and statutory law addresses the issue and provide procedures to authorise other people to make legal decisions on behalf of such persons Examples: Mentally disabled, illnesses related to old age, reception order, prodigals

3 Current Position Common Law Not impacted on by the Mental Health Care Act 17 of 2002 High Court may still appoint a curator-ad-litem, curator-bonis or curator-ad-personae Statutory position Mental Health Care Act 17 of 2002 Effective 15/12/2004 Replaced Mental Health Act 18 of 1973 Application to the High Court not required Master may appoint an administrator (akin to curator) on application

4 Common Law Application to the High Court in whose jurisdiction mentally ill is domiciled or owns property Application on Notice of Motion to mentally ill person and Master, and if owning fixed property, to Registrar of Deeds Procedure set out Rule 57 of High Court Uniform Rules Normally two recent medical reports by medical doctors, one whom shall, where practicable, a psychiatrist Court will appoint Curator-ad-Litem (usually advocate), to investigate matter and report to Court and Master

5 Master files report to Court, making recommendations Court issues order as it may deems necessary Master appoints Curator Bonis upon further receipt of: Court order Inventory Security by Curator Bonis, unless exempted Acceptance-form by Curator

6 Mental Health Act 17 of 2002 No High Court application involved Master appoints an Administrator(Section 59) Procedure in terms of Section 60 or 61 to be followed:

7 Section 60 Application made directly to Master: Form MHCA 39 (Regulation 51) to the Master, sworn to under oath or solemn affirmation Section 60(2)(a-f)sets out further requirements in detail Mentally ill person must be notified, and proof submitted to Master Must recommend suitable person as Administrator (Form MHCA 39)

8 If value of estate is less than R , or annual income less than R , then Master may: appoint an Administrator decline to appoint an administrator cause an investigation to be conducted, if certain allegation require confirmation or further information is required.

9 Investigation If value of estate is more than R , or annual income more than R , then Master must cause an investigation to be conducted The investigator (Rule 57 Advocate or Attorney) must confirm all allegations and facts contained in the application and call on that person or his or her legal representative to respond to the application must submit a report on his or her findings to the Master must finalise the investigation with 60 days of being instituted, unless the Master extends such period may summon any person to appear before him or her to provide information and documents relevant to the application or that person may enquire into the financial position of that person

10 Master s decision Master must, within 14 days after considering the investigator s report: appoint an administrator, or decline to appoint an administrator, or refer the matter to High Court Judge in chambers

11 The Master must, in writing, inform the applicant and the mentally ill person or person with severe or profound intellectual disability of his or her decision and the reasons thereof Appeal within 30 days of the written notice of Master s decision, by submitting a written notice of appeal to a High Court Judge in chambers and a copy to the Master setting out the grounds of the appeal

12 Section 61 If a High Court, when conducting an enquiry: in terms of this Act or during any legal proceeding, has reason to believe that a person in respect of whom an enquiry or legal proceeding is held or conducted may be incapable of managing his or her property, it may conduct an investigation into the mental health status of that person and his or her capacity to manage his or her property If the Court finds that the mental health status of the person concerned is of such a nature that such person is incapable of managing his or her property, it may: recommend that an administrator be appointed in respect of that person; and notify that person and a Master of a High Court of the finding and recommendation, and the reasons thereof

13 Master s position under new Act If value more than R 200k or annual income more than R 24k If value more than R 200k or annual income more than R 24k) If Master refers matter Appointment Decision Refusal Optional referral by Master

14 Appointment Valid from date of issue of Letters by Master, not order of Court No powers prior to appointment by Master Appointment in form MHCA 43 (Regulation 53) Administrator and Curator treated as similar by Master Master in Cape Town usually dilutes obligations of Administrator visà-vis obligations of Curator, such as the lodgment of Inventory of placement of Section 75(Administration of Estates Act 66 of 1965) notice

15 Administrator is defined as: a person appointed in terms of section 59 to care for and administer the property of a mentally ill person and where applicable includes an interim administrator Any person may be appointed an Administrator Security must be furnished, unless exempted or reduced by the Master (Section 63(1)) If recommendation by Judge in Chambers, Master must cause an investigation to be conducted to determine a suitable candidate to be appointed as administrator for the person concerned and appoint the administrator Cost of application borne by mental ill person s estate, OR applicant if trivial or vexatious

16 Powers An administrator: may take care of and administer the property and perform all functions incidental thereto, may carry on any business or undertaking, subject to any other law may not perform act considered too personal (eg. Parental consent to marry and Divorce) may not alienate or mortgage any immovable property unless authorised to do so by a court order OR consent of Master may not allow his or her spouse, child, parent, partner, associate or agent may not purchase or otherwise acquire any property of that person unless: Master consents, or the purchase or acquisition was, in writing, legally authorised by that person before that administrator was appointed

17 Duties An administrator must, immediately after his or her appointment: pay all moneys received to the Master, unless: the Master directs otherwise (usually in appointment conditions) a legal document of that person made before the administrator was appointed, authorises otherwise, or the money is required to: repay debt pay expenses relating to the safe custody of the property of that person maintain or educate that person or his or her dependants pay for the current expenditure of the business or undertaking of the person.

18 Rights of Mentally Ill Still has capacity to act whenever he or she is mentally capable of doing so per De Villiers JP in Pienaar v Pienaar s Curator 1930 OPD 171 at

19 Administration of Estates Act 66 of 1965 Sections 75, 78, 79, 83, 84 and 85 of Administration of Estates Act 66 of 1965 applies to Administrator and Curator: Section 75 notice in Government Gazette Section 78 inventory to Master Section 79 caveat over immovable property Section 83 file annual account with Master Section 84 entitled to remuneration (6% on income and 1% on capital on termination) Section 85 Section 24 - reduction of security Section 26 - obligation to take possession and control of estate Section 28 - open and keep a bank account Section 36 - application by Master to Court for order to comply Section 42(2) - consent by Master to transfer fixed property Section 46 - failure to pay over monies to Master or in bank account Section 48 - extension of time to pay debts Section 49(2) - consent by Master required for Administrator or Curator to buy property Section 52 - prohibition against substitution or subrogation Section 53 - absence from the Republic > 60 days Section 54 - removal from office by Court or Master Section 56 - discharge

20 Account of Administration Lodge account with Master Within 3 months from the last day of the financial year of estate as determined by Master Prescribed format (Regulation 7): Income and Expenses Account (Income Statement) Capital Account (Balance Sheet) Cash Reconciliation Certificate Submitted with all original or certified copies of supporting vouchers

21 Header and Income TWELFTH CURATOR'S ACCOUNT IN RESPECT OF X, IDENTITY NUMBER X, FOR THE PERIOD 01 JULY 2008 TO 30 JUNE 2009, IN TERMS OF SECTION 83(1) OF THE ADMINISTRATION OF ESTATES ACT 66 OF 1965 MASTER'S REFERENCE: INCOME AND EXPENDITURE ACCOUNT Income Interest on call account no. 1 at Nedbank for the period 01/07/2008 to 30/06/ see Addendum "A" Sanlam 2 Dividends (2725 shares at R0.77 per share as at 09 May 2007) Sanlam Dividends (2725 shares at R0.98 per share as at 06 May 2009) 3 R -

22 Expenses Expenditure Debts and Maintenance charges Mr. (father of ) 5 Maintenance for the period 01/07/2008 to 30/06/ see Addendum "B" Sars - Provisional Tax 6 - Provisional Tax 7 City of Cape Town 9 Rates and taxes for fixed property for the period 01/07/2008 to 30/06/ see Addendum "B" Santam Insurance Co 10 Home and motor vehicle insurance for the period 01/07/2006 to 30/06/2007 Administrative expenses Bank charges 12 - Current account no. Nedbank - see Addendum "B" Postage and Petties 13 Curator's remuneration (6% on items 1 to 6) 14 R - V.A.T on curator's remuneration (14%) 15 R - Surplus carried over to capital account R - R -

23 Capital Account CAPITAL ACCOUNT Immovable property held under Deed of Transfer no. T dated 03/06/1998, being no., Macassar (Erf, Cape Town at Macassar) Toyota Corolla, registration no. NedBank Corporate Saver account no. Credit balance as at 30/06/2009 NedBank Current account no. Credit balance as at 30/06/2009 Sanlam shares (2725 shares at R per share as at 30 June 2009) R - Capital as per 11th account Add Surplus carried over from Income & Expenditure account Add Claim for repairs to patient's kitchen paid by Santam Add Expenditure not yet paid (Items 20, 21 & 22) Less Capital loss in value of Sanlam Shares (From R to R per share) Add Capital gain - immovable property (From R to R ) Less Capital loss - motor vehicle (From R to R )

24 Cash Reconciliation CASH RECONCILIATION STATEMENT Cash in NedBank call account as at 1 July 2008 Cash in NedBank Current account as at 1 July 2008 Add: Income as per Income and Expenditure account Less: Expenditure as per Income and Expenditure account Add: Claim for repairs to patient's kitchen paid by Santam Add: Expenditure not yet paid (Items 20, 21 & 22) Add: Policies matured - Momentum Sanlam Liberty Life Cash in NedBank Corp Saver account as at 30 June 2009 Cash in NedBank Current account as at 30 June 2009

25 Certificate CURATOR'S CERTIFICATE I declare that to the best of my knowledge and belief the account is a true and proper account of my administration, that it reflects all the property of and debts owing to the person under curatorship and all income collected and debts, expenses and charges paid by me during the period covered by the account, and that I am not aware of any disputed right to assets or liabilities. xxx Curator Bonis Dated at on this day of 20.

26 Termination of Appointment Appointment may be terminated on application by: a person in respect of whom the administrator was appointed the Administrator himself the person who made an application for the appointment of the administrator

27 Application must be made by way of a written affidavit delivered to Master Application must contain: the grounds on which the application is based all medical certificates or reports relevant to the mental health status of the person concerned issued subsequent to the appointment of that administrator the estimated property value at the time of application The Master must, within 14 days of receipt of the application: terminate the appointment of the administrator decline the application refer the matter to a High Court judge in chambers

28 Prepared and presented by Ockie Visser (visserlegal) and Nicholas Yeowart (R F J Yeowart Attorneys)