What is the difference between a Power of Attorney and the appointment of an Administrator and/or Curator?
Life is about making decisions. From the moment you get up in the morning till the moment you go back to bed, you face a multitude of situations where you have to make decisions. Some more important than others, some more difficult than others.
For any individual to be able to make a legal decision with attached legal consequences, they must have the necessary legal capacity to act. This means that the individual must be able to understand the nature, purpose and consequences of their legal action. An individual must therefore be in a mental position to understand the nature of the legal action, must be able to comprehend the consequences of such action and must then be able to make an informative decision to act accordingly. Unfortunately, situations do exist where an individual does not have the mental capacity to make legal decisions. These situations often caused by, amongst others, intellectual disability, brain injury, dementia and Alzheimer’s disease. Even though statistics show that these mental impairments are more common under the elderly, one shouldn’t be oblivious to the fact that it can happen to anyone at any given time.
The main problem that arises in these situations, is that decisions on granting someone else the power to act on your behalf are often made too eagerly and without proper knowledge. A very important difference exists between granting someone a general power of attorney on the one hand and having a curator/administrator appointed to manage your affairs on the other. It is extremely important to be aware of the fact that a power of attorney can only be validly used while the principal (the person giving authority to the agent to act on his/ her behalf) is still mentally competent to make legal decisions. A general power of attorney will thus lapse where the principal is no longer capable of managing his/ her own affairs due to mental incapacity.
Two options via which one can be granted the power to administer the affairs of another are: 1) by applying to be appointed as a curator by means of a High Court application or 2) the appointment of an administrator in terms of the Mental Health Care Act 17 of 2002 by the Master of the High Court. These two options grant authority to an agent to act on behalf of an individual where the said individual is completely incapable of managing their own affairs. The appointment of a curator has to be done by means of a High Court application, which costs a lot of money and is time-consuming, whereas no High Court application is needed for the appointment of an administrator which leads to a more affordable and faster option.
It is extremely important to be aware that no person/agent is permitted to act on behalf of an individual where he/she lacks the necessary authority to do so. The difference between the authority granted by a power of attorney versus the appointment of a curator/administrator is a very important when considering the management of the affairs of an individual and should always be very carefully considered.
Article written by Erika Oosthuizen (Candidate Attorney, Rauch Gertenbach Attorneys).
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