non-financial matters and tries to involve the person in the performance of his or her duties. He or she can allow the person with incapacity to act independently and is in fact compelled to do so where the person is capable of reasonably appreciating the consequences of his or her acts.
The kantonrechter may at any time call upon the mentor to submit a report regarding his or her activities.545
♦ Consent to medical treatment is regulated separately.546 Substitute decision-making is possible in respect of practically all forms of medical treatment (by the legally appointed curator or mentor) even in respect of sensitive treatment. However, if the will of the person concerned is known (eg by way of an advance directive) substitute decision-making becomes practically impossible.547
SUGGESTIONS FOR THE DEVELOPMENT OF AN
authority” to act on behalf of an adult with incapacity. We propose that the
“general authority” should be developed on the basis of the following:
* Its content should be developed on the model of the common law concept of negotiorum gestio (as set out in paragraphs 6.11 to 6.16 above).
* The arrangement should enable “anyone” (and not only “nearest relatives” or “family”) to act on behalf of a person with incapacity.
The reason for this being that one of our main aims would be to also make provision for substitute decision-making measures for adults with incapacity who have no family or in respect of whom family is unwilling or unavailable to make decisions.
* It should be restricted to assistance with regard to personal welfare. We submit that, since any action taken on behalf of an adult with incapacity under a general authority will by its very nature be unsupervised, it would be undesirable to extend such authority to decision-making with regard to financial affairs because of the obvious danger of misuse and abuse of the authority.
* It should allow for run-of-the-mill expenses to be incurred and paid for on behalf of the adult with incapacity concerned.
* It should allow for a person who has signing powers in respect of a banking account of his of her spouse who becomes incapacitated to retain this power after the incapacity of the spouse. Safeguards must be built into the process to protect the interests of the spouse with incapacity (eg by requiring that the signing power must have existed at the time of incapacity and that the power can be used only for specific limited purposes such as payment of reasonable living expenses of the adult with incapacity.)
* It should clarify the position of parents as surrogate decision- makers for their major children with incapacity (especially those with intellectual disabilities). It is suggested that this could be done by granting such parents “automatic” appointment as manager or mentor under certain circumstances.
* It should cover situations where a statutory substitute decision- maker has not been appointed as well as where an enduring power of attorney has not been granted.
* The proposed measures should be carefully and exactly drafted to allow surrogate decision-making only under clearly defined circumstances.
♦ A short term measure aimed at one-off decisions to be made on behalf of adults with incapacity based on the models provided for by both the English and Scottish Law Commissions as referred to in paragraphs 6.45 and 6.46 above. We will refer to this measure as a “specific intervention order”. We suggest that legislation should allow the Master or any suitable person to make such one-off decision in respect of the personal welfare or financial affairs of the adult concerned. We further suggest that a one-off appointment of a substitute, or a decision by the Master, to render assistance to an adult with incapacity when necessary, should be preferable to the longer term options suggested below.
♦ Longer term measures to specifically serve as alternatives to the common law measures of curator bonis and curator personae. In this regard we suggest that legislation should make it possible to appoint a “manager” to care for and mange the property of an adult with incapacity; and a
“mentor” to take care of the personal welfare of an adult with incapacity.
The Master should however always have the discretion to refer the matter to a Court for the appointment of a curator. We suggest that the powers and duties of the manager and mentor, supervisory measures (for instance the submission of accounts or reports), restrictions on their authority, and termination of their appointment be developed on the basis of current requirements in respect of curators as set out in Chapter 4 of the Administration of Estates Act, 1965. As regards authority to consent to medical treatment on behalf of an adult with incapacity, we suggest that a mentor should be able to give consent in accordance with the provisions of the National Health Bill, 2003 as set out in paragraphs 4.15, 4.18 and 4.21. It should be noted that the Bill does not provide for surrogate consent to refuse the carrying out or continuation of life- sustaining treatment.
♦ A suitable supervisory framework (within which the respective substitute- decision-makers will have to operate) and suitable safeguards to sufficiently protect the interests of adults with incapacity. It is suggested that the existing supervisory framework for curators (i e the Master of the High Court, with recourse to the High Court as a last resort) be utilised rather than creating new frameworks that might complicate implementation of the proposed legislation.
6.50 In embodying the above proposals in legislation one of the major questions that arose was how to deal with any overlap between draft legislation containing our proposals and the Mental Health Care Act, 2002. As indicated in paragraphs 6.19-6.25 above, the Mental Health Care Act already provides for the appointment of an administrator to care for and administer the property of the
“mentally ill” and persons with “severe of profound intellectual disability” as defined in that Act.548 Because of the wide definition of “incapacity” in our proposed draft legislation549 the measures proposed in this Chapter (in particular those with relation to the appointment of a manager to care for and manage the property of an adult with incapacity) will be available to such persons.550 What should the relationship between the two pieces of legislation be? Should an overlap be avoided? Should our proposed draft legislation be excluded from applying to persons who are “mentally ill” and who suffer from “severe or profound intellectual disability”? If we expressly exclude our proposed Bill from applying to the “client base” of the Mental Health Care Act, the Master (who also fulfils the supervisory role in applications for the appointment of an administrator under that Act) will have to decide in respect of every application for appointment of a manager under our proposed legislation whether the adult concerned does not belong to the “client base” of the Mental Health Care Act - and if so, the provisions of our proposed legislation would not apply. We foresee difficulty with such an approach especially in view of the complex definitions of “mental illness”
and “severe or profound intellectual disability” in the Mental Health Care Act. We
548 See the definitions in footnotes 18 and 20 above.
549 See par 4.38 for the recommendation which is embodied in clause 4 of the draft Bill in Chapter 8.
550 See the discussion of the relevant provisions in par 6.19-6.25 above.
submit on a preliminary basis that the two pieces of legislation could exist alongside each other, and that the legislator could in time consider whether a uniform arrangement (possibly in the form of the wider, simpler and more accessible approach proposed by the Commission) would suffice.
6.51 One of our main aims in providing for the proposed measures is to keep them as simple and accessible as possible. With this in mind we suggest that the same procedure should be prescribed for applications for the appointment of persons to act in terms of specific intervention orders and applications for the appointment of managers and mentors. Because of the obvious similarities in purpose, we considered modelling our proposed application procedure on that prescribed for the appointment of an administrator under sections 59-64 of the Mental Health Care Act, 2002. We however rejected this procedure as unnecessarily complicated.551 On the basis of informal discussions with a representative of the Masters Office we developed the application procedure contained in our proposed draft Bill on the model of section 56A of the current Mental Health Act, 1973 (which procedure has not been included in the new Mental Health Care Act).552 This procedure is generally regarded as fulfilling the requirements of simplicity, practicality, accessibility and cheapness.
PRELIMINARY RECOMMENDATION
6.52 We propose that a multi-level system of substitute decision-making as broadly set out in paragraph 6.49 be introduced by legislation as alternative to the curatorship system.
6.53 The detail of our proposal is reflected in Chapters 2 (Default authority to act on behalf of adult with incapacity), 3 (Specific intervention orders), 4 (Management of property), 5 (Care for personal welfare) and 7 (Supplementary powers of the Master and the Court) of the Draft Bill contained in Chapter 8 of this Paper.
551 The procedures referred to are set out in detail in par 6.21.
552 This procedure basically involves an application to the Master without the need for the involvement of lawyers, and the submission of the minimum amount of documentation to enable the Master to exercise his or her discretion as to whether to make an appointment. See also par 3.28 above.
7
R e p r e s e n t a t i o n t h r o u g h p o w e r o f a t t o r n e y
INTRODUCTION
7.1 Representation is the phenomenon whereby one person (an agent) concludes a juristic act (an act whereby legal relationships are created and which has legal consequences) on behalf of or in the name of another (the principal).553 A power of attorney is a formal document by which the principal empowers or authorises the agent to act on his or her behalf.554
7.2 Under common law a power of attorney terminates once the principal becomes mentally incapacitated.555 A power of attorney may therefore be of little value to someone who fears that their mental capcity is weakening or may be weakened who wants someone to act on their behalf if and when that situation arises.
Frequently family and caregivers of incapacitated persons are under the
553 De Wet in LAWSA Vol 1 par 100-101; Joubert 1-3; De Villiers and Macintosh 1, 38-41; Kerr 3-4.
The general concept of representation must not be confused with the contract of agency. The concept of representation is not a contract but the legal institution by which one person takes the place of another and acts for him or her in juristic acts. The contract of agency (a contract of mandate) is a normal contract which regulates the relationship between principal and agent and which can create rights and duties for the principal and the agent. Although as one of its consequences the agent may be empowered to act as the representative of the principal, the relationship remains contractual and should not be confused with cases of purely juristic representation - eg that of parent and minor child (De Villiers and Macintosh 13-15). From a theoretical point of view it should be noted that there are two different approaches to the treatment of the law of agency by South African legal authorities: The one approach is to combine the treatment of the rules relating to the contract of mandate with the rules relating to representation and considering them all as falling under the “contract of agency” (as eg by De Villiers and Macintosh). The other approach (adopted by De Wet) is to treat separately those rules of agency which are rules of the contract of mandate on the one hand, and representation and authority on the other hand (De Villiers and Macintosh 13-15; Kerr 6-10; De Wet in LAWSA Vol 1 par 100).
This does not affect the applicable legal principles discussed in this chapter. Where necessary reference will nevertheless be made to the difference in approach in the footnotes.
554 See the discussion of the common law in par 7.6 below.
555 See par 7.24 below.
impression that the power of attorney signed by a person in their care will be effective until that person dies and they continue to act on behalf of such person.
7.3 The problems caused by the common law rule that a power of attorney terminates on incapacity have led to the development of a mechanism that survives the subsequent mental incapacity of the principal - the enduring power of attorney (in some legal systems referred to as a “durable” or “continuing”
power of attorney).556 The impetus for this development in many jurisdictions was the introduction, in the 1950s, of legislation on enduring powers of attorney in Virginia, United States of America and the enactment in 1964 of a United States Model Act in this regard.557 This was followed by the United States Uniform Probate Code, 1969 which contained a blueprint for enduring power legislation.558 Enduring powers of attorney legislation, based on these models, exist in all 50 states and Washington DC in the United States of America.559 These developments were followed by a spate of recommendations by law reform bodies in Australia, England and Canada.560 One of the most developed schemes is found in Britain561 with simpler approaches in Ontario (Canada)562
556 Van Dokkum 1997 Southern African Journal of Gerontology 17 et seq; Barker 1996 De Rebus 259 et seq; Neuman 1998 De Rebus 63-64.
557 The Special Power of Attorney for Small Property Interests Act (Creyke 1991 Western Australian Law Review 123).
558 The main future of the Uniform Probate Code as far as it concerned enduring powers of attorney, was that it provided for survival after incompetence if the language of the instrument indicated this to be the principal’s intent. The popularity of the single subject of enduring powers led to a separate Uniform Durable Power of Attorney Act which in 1979 replaced and amended the relevant provisions of the Uniform Probate Code (sec 5-501 to 5-505). The latter Act polished the concept in regulating the relationship between a later Court appointed trustee or other fiduciary; and allowing the agent to exercise the power on the death of the principal if its exercise is in good faith and without knowledge of the death. The Uniform Durable Power of Attorney Act is currently under amendment (according to draft amendments that have been published in April 2003) (Creyke 1991 Western Australian Law Review 123; Alberta Law Reform Institute Report for Discussion No 7 1990 10; National Conference of Commissioners on Uniform State Laws [Internet];
Amendments to Uniform Durable Power of Attorneys Act 1979 [Internet]).
559 Schlesinger and Scheiner 1992 Trusts and Estates 38.
560 Creyke 1991 Western Australian Law Review 123-124.
561 Cf the Powers of Attorney Act 1985.
562 Cf the Powers of Attorney Act 1979.
and Victoria (Australia).563 Different models vary depending upon the view taken of the need for safeguards to protect the interests of the principal.564
7.4 As indicated in Chapter 3, the Commission recommended in 1988 that the enduring power of attorney (covering financial and property-related decisions and including the possibility to grant a conditional power of attorney)565 should be introduced in our law. The government has not implemented these recommendations.
7.5 Information on the current law regarding powers of attorney in South Africa; the concept of enduring powers of attorney as developed in comparable jurisdictions;
and the Commission’s 1988 recommendations are included in the discussion below as basis for the development of preliminary recommendations to introduce the concept of the enduring power in our law.