Legal and Financial
The South African Law Reform Commission is engaged in an investigation into the law with regard to assisted decision-making, with a view to its reform.
Making decisions is an important part of human life. Although we take it for granted that adults can make decisions about their personal welfare, financial affairs and medical treatment, some adults cannot make such decisions for themselves because of diminished capacity as a result of mental illness, intellectual disability, physical disability or an incapacity related to ageing in general. A legitimate expectation of the law is that it should establish a structure within which appropriate autonomy and self-determination are recognised and protected. Such a structure should provide appropriate substitute decision-making devices and the necessary protection from abuse, neglect and exploitation.
At present the law deals with decision-making incapacity by way of curatorship. The curatorship system has been criticised for its serious and frustrating difficulties. An individual can also allow another to act on his or her behalf through a power of attorney. A power of attorney, however, terminates on the incapacity of the person who granted the power. This is a major cause for concern: frequently, caregivers are under the impression that the power granted by a person in their care will be effective until that person dies, even in cases where the person has severely diminished mental capacity and is therefore incompetent in the eyes of the law.
Against the above background the Commission, in a Discussion Paper published for comment in 2004, provisionally proposed that a change to the law is necessary to provide for the following:
- An alternative to the curatorship system, without abolishing it. The alternative would consist of a multi-level system including a default arrangement, short-term measures and longer-term measures. The proposed alternative provides for assisted decision-making with regard to financial affairs as well as personal welfare.
- Introduction into our law of the concepts of the enduring power of attorney and the conditional power of attorney. (An enduring power of attorney endures the subsequent incapacity of the person who granted it, while a conditional power of attorney comes into effect only on incapacity.) The Commission suggests that it should be possible to grant enduring and conditional powers of attorney in respect of financial affairs as well as personal welfare. Measures are built into the proposed legislation to ensure sufficient protection against possible abuse of the authority granted by an enduring power of attorney.
It is expected that the Commission’s report with final recommendations will become available during 2007. Details of its provisional proposals are reflected in the Discussion Paper, available on the Commission’s website at http://www.doj.gov.za/salrc/index.htm
Please contact firstname.lastname@example.org if you would like a copy of the notes taken at a talk given by Advocate Margaret Meyer, on the subject of dementia and your legal options. We also have, for sale, a document written by Professor Jan Bekker, about the legal implications of mental incapacity.
Although not considered a legal document, an advance directive (also known as a living will) allows people with dementia to outline the treatment and care they would like in the future, when they may not be able to communicate their wishes.
An advance directive enables them to:
- Give their consent to particular forms of treatment
- Refuse certain treatments
- Choose someone who will make decisions about care and treatment on their behalf
You can’t use an advance directive to ask a doctor to do anything unlawful and you cannot refuse basic care such as food, drink and pain relief. See www.livingwill.co.za for more information.
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