ELDER ABUSE, POWERS OF ATTORNEY, CURATORSHIPS, ENDURING POWERS OF ATTORNEY

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1 ELDER ABUSE, POWERS OF ATTORNEY, CURATORSHIPS, ENDURING POWERS OF ATTORNEY ADAM BRINK 2 ND WORLD CONFERENCE ON HEALTHY AGEING - JULY/AUGUST 2015

2 ACTION ON ELDER ABUSE SA CAPE TOWN

3 WHAT I SHALL MENTION: 1. The crime of elder abuse 2. Powers of Attorney 3. Curatorships 4. Enduring powers of attorney (elder abuse)

4 ELDER ABUSE IN THE OLDER PERSONS ACT, 13 of Prohibition of abuse of older persons and special measure to combat abuse of older persons (1) Any person who abuses an older person is guilty of an offence. (2) Any conduct or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress or is likely to cause harm or distress to an older person constitutes abuse of an older person. (3) For the purposes of subsection (2), 'abuse' includes physical, sexual, psychological and economic abuse and- (a) 'physical abuse' means any act or threat of physical violence towards an older person; (b) 'sexual abuse' means any conduct that violates the sexual integrity of an older person; (c) 'psychological abuse' means any pattern of degrading or humiliating conduct towards an older person, including- (i) repeated insults, ridicule or name calling; (ii) repeated threats to cause emotional pain; and (iii) repeated invasion of an older person's privacy, liberty, integrity or security; (d) 'economic abuse' means- (i) the deprivation of economic and financial resources to which an older person is entitled under any law; (ii) the unreasonable deprivation of economic and financial resources which the older person requires out of necessity; or (iii) the disposal of household effects or other property that belongs to the older person without the older person's consent. (4) If a court, after having convicted a person of any crime or offence, finds that the convicted person has abused an older person in the commission of such crime or offence, such finding must be regarded as an aggravating circumstance for sentencing purposes.

5 CASE STUDY - AGNES BORN IN 1922, DIED IN 2007 AGED 85 Enters home in Parkinsons and other issues. Daughter overseas. Visits twice in 2007 (Feb and September) and notices smell. Assured all well. Mother listless. November 2007 asked to fill out prescription for antibiotics and asks why bedsores. 27 November 2007 admitted to Panorama on Medical Aid, septicemia, no body fat, dehydrated. Successfully intubated on admission 8 December despite all efforts, she dies. 12 December 2007 doctors describe her condition as being compatible with long term starvation and severe malnutrition February 2008 home audited. It fails on many levels and they respond aggressively May 2008 we visit SAPS Parow July we enlist senior counsel and report matter directly to Rodney de Kock at NPA, citing R v Stone, R v Dobinson [1977] 2All ER 341 who refers it back to SAPS - Endless following up, including various visits. Inquest reports on 17 October 2013 charges must be pressed

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8 POWERS OF ATTORNEY AND CURATORSHIPS Our Constitution enshrines, as a right, the right to dignity. Autonomy is central to this. A respect for people s autonomy has always driven our law s development: criminal law, contract, testamentary. (PoA)

9 POWERS OF ATTORNEY The power of attorney. Limited very strictly to what it says. Does not automatically permit the holder to appoint another in his place. (1) a power of attorney cannot be granted by someone who lacks contractual capacity; (2) a power of attorney lapses automatically once the person who grants it loses contractual capacity (coma, dementia, and death). (Enduring PoA)

10 CURATORSHIPS Also of ancient origin. curator a caregiver. Si furiosus escit, adgnatum gentiliumque in eo pecuniaque eius potestas esto. If someone goes mad, his nearest male kinsman shall have authority over his property. There are two types: (1) over one s person (ad personam); and (2) over ones goods (bonis).

11 THE CURATOR BONIS Necessary when the person loses capacity; possible if the person still has it. (prodigals, absent people, mental weakness, serious illness, retardation, substance abuse, weakness of the will and mental incapacity) How? Rule 57 de lunatico inquirendo. Shift from lunatics to dementia patients. Mental capacity not always the touchstone.

12 PROCEDURE (1) First you need an applicant! Who? And why. (2) Two doctors, one an alienist ; and the curators. Who? And why. (3) And a curator bonis. Who? And why. (Not the nearest male kinsman!). Security. (4) Prepare the application and go to court. With luck a curator ad litem is appointed.

13 YOU AREN T EVEN HALFWAY THERE (5) s/he must conduct such enquiries as s/he believes necessary and report to the Court. The home s role. (6) The Master must report to the court. (7) With curator ad litem and master s reports you go back to court. With luck the curator bonis is appointed; (8) Back to the Master for letters of authority Six weeks - all going well. What can go wrong?

14 THE CURATOR AD PERSONAM Courts are deeply reluctant to order this. Why? Back to the rickety bridge, but more than that The effect of an aging population not yet taken account of. Who should do it? What are your powers and duties? They are parental in nature: personal regimen, where you live, what medical treatment you undergo, who will do it (even, importantly, who may and may not visit) (Wills)

15 THE LIVING WILL An indication while able to communicate what one s desires are with respect to what you would wish done once one cannot communicate. Enforceable in terms of section 7 of the National Health Act. Not the end of the story, though, as the content may be such as to raise questions.

16 SECTION 7(1) OF THE NATIONAL HEALTH ACT 7 Consent of user 1 Subject to section 8, a health service may not be provided to a user without the user s informed consent, unless - (a) The user is unable to give informed consent and such consent is given by a person (i) mandated by the user in writing to give such consent on his or her behalf; or (ii) authorised to give such consent in terms of any law or court order. (b) The user is unable to give informed consent and no person is mandated or authorised to give such consent, and the consent is given by the spouse or partner of the user or, in the absence of such spouse or partner, a parent, grandparent, an adult child or a brother or a sister of the user, in the specific order as listed;

17 continued (c) (d) (e) The provision of health services without informed consent is authorised in terms of any law or a court order; Failure to treat the user, or group of people which includes the user, will result in a serious risk to public health; Any delay in the provision of the helath service to the user might result in his or her death or irreversible damage to his or her health and the user has not expressly, impliedly or by conduct refused that service.

18 ENDURING POWERS OF ATTORNEY A power of attorney intended by the grantor to carry on when they are no longer able to grant or revoke it. Exists in English and other legal systems, but does not exist in our law, though it may one day.

19 ENDURING POWERS OF ATTORNEY Cons: (1) not generally executed carefully; (2) can t anticipate everything; (3) difficulties in revoking; (4) unworthy holders and potential abuse Pros: (1) avoids curatorships; (2) great for short term problems and emergencies; (3) cheap; (4) the cons can be prevented with careful drafting of the legislation; (5) they honour our autonomy; (6) it brings the law in line with medical treatment

20 An idea whose time has come: 1988 SALC suggests change to law 2004 fresh review with same conclusion, and draft bill attached fresh call in De Rebus deadline for Bill deadline Private Member s Bill?

21 MY TAKE HOME POINTS Greater regard must be had to the Older persons Act, both by us and the State Powers of attorney lapse when the grantor lacks the power to revoke them. Living wills are enforceable, if they are not clearly illconsidered. Curatorships are necessary in certain cases, and useful in others. Enduring powers of attorney are not part of our law, but should be.

22 QUESTIONS. If any!

23 QUESTIONS. If any!