Adults with Impaired Decision-making Capacity

REPUBLIC OF SOUTH AFRICA

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ADULTS WITH IMPAIRED DECISION-MAKING CAPACITY BILL

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(As introduced ………………………

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(MINISTER FOR JUSTICE AND CONSITUTIONAL DEVELOPMENT

BILL

To provide for statutory authority to make decisions on behalf of an adult with impaired decision-making capacity; to enable an agent under an enduring power of attorney to make decisions on behalf of an adult with impaired decision-making capacity; and to provide for matters connected therewith.

PREAMBLE

RECOGNISING that the inability or limited ability of an adult to make legally effective decisions may reduce such person’s ability to control his or her life;

RECOGNISING that human dignity, the achievement of equality and the advancement of human rights and freedoms are founding principles of our democracy; and

RECOGNISING further that the South African common law and statutory law fail to deal effectively with the need for assisted and substituted decision-making, thereby failing to provide adequate protection against exploitation of adults with decision-making incapacity;

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:-

ARRANGEMENT OF SECTIONS

1. Definitions

CHAPTER 1

FUNDAMENTAL PROVISIONS

2. Objects of Act

3. Application of Act

4. Adult with incapacity

5. Intervention to be in best interests of adult with incapacity

CHAPTER 2

DEFAULT AUTHORITY

TO ACT ON BEHALF OF ADULT WITH INCAPACITY

6. General authority to act

7. Expenditure in relation to general authority to act

8. Restrictions on general authority to act

9. Authority in relation to signing power on bank account

10. Authority to act in respect of minors who become adults with incapacity

CHAPTER 3

SPECIFIC INTERVENTION ORDERS

11. Power of Master to make specific intervention order

12. Application for order

13. Disposal of application and security

14. Legal effect of order

15. Restrictions

16. Notification of address

17. Records

18. Care diligence and skill required of person authorised

19. Reimbursement

20. Account or report on completion of duties

21. Discharge

CHAPTER 4

MANAGEMENT OF PROPERTY

Part 1

Appointment of manager

22. Power of Master to appoint manager

23. Application to appoint manager

24. Disposal of application

25. Security

26. Who may be appointed

27. Renewal of appointment

28. Legal effect of appointment

Part 2

Powers and duties of manager

29. Powers conferred by letter of appointment

30. Taking custody of property

31. Lodging of and updating inventory of property

32. Banking accounts and investments

33. Failure to deposit money in banking accounts

34. Lodging of documents in case of transfer of immovable property

35. Notification of address and change of circumstances

36. Accounts

37. Care, diligence and skill required of manager

38. Remuneration

Part 3

Restrictions on manager

39. General restrictions

40. Restriction on alienation or mortgage of immovable property

41. Restriction on purchase of property

42. No substitution or surrogation

Part 4

Termination

43. Resignation of manager

44. Termination of appointment on adult recovering from incapacity

45. Withdrawal of appointment by Court or Master

46. Cancellation of letter of appointment

47. Return of letter of appointment

48. Discharge

CHAPTER 5

CARE FOR PERSONAL WELFARE

Part 1

Appointment of mentor

49. Power of Master to appoint mentor

50. Application to appoint mentor

51. Disposal of application

52. Who may be appointed

53. Renewal of appointment

54. Legal effect of appointment

Part 2

Powers and duties of mentor

55. Powers and duties conferred by letter of appointment

56. Keeping of records

57. Notification of address and change of circumstances

58. Reports

59. Care, diligence and skill required of mentor

60. Remuneration and reimbursement

Part 3

Restrictions on mentor

61. General restrictions

62. Restriction relating to health care

63. No substitution or surrogation

Part 4

Termination

64. Resignation of mentor

65. Termination of appointment on adult recovering from incapacity

66. Withdrawal of appointment by Court or Master

67. Cancellation of letter of appointment

68. Return of letter of appointment

69. Discharge

CHAPTER 6

ENDURING POWERS OF ATTORNEY FOR PROPERTY AND FOR PERSONAL WELFARE

Part 1

Introductory provisions

70. Enduring power of attorney

71. Scope of enduring power of attorney: property and personal welfare

Part 2

Execution formalities

72. Formalities required in execution of enduring power of attorney

73. Requirements regarding signing and witnessing

74. Dispensing of execution formalities

Part 3

Appointment of agent

75. Appointment of agent

Part 4

Registration

76. Registration of enduring power of attorney

Part 5

General powers and duties of agent

77. Furnishing of security

78. Notification of address and change of circumstances

79. Keeping of records

80. Accounting on request

Part 6

Restrictions

81. General restrictions

82. Restrictions in respect of personal welfare

Part 7

Termination

83. Revocation by principal

84. Resignation by agent

85. Withdrawal by Court or Master

86. Return of copy of enduring power of attorney

Part 8

Validity of certain documents as enduring powers of attorney

87. Recognition of foreign documents

CHAPTER 7

SUPPLEMENTARY POWERS OF THE MASTER AND THE COURT

Part 1

Powers and duties of the Master

88. Notification of appointment and of cessation

89. Returns to registration officer of immovable property included in manager’s inventory

90. Powers on failure to lodge accounts or perform duties

91. Initiation of appointment of manager or mentor under certain circumstances

92. Investigation and enquiry

93. Interim rulings

94. Review

Part 2

Access to Court

95. Access to Court

CHAPTER 8

GENERAL PROVISIONS

96. Regulations

97. Offences and penalties

98. Short title and commencement.

SCHEDULE

FORM 1

Model form for enduring power of attorney relating to property

FORM 2

Model form for enduring power of attorney relating to personal welfare

Definitions

1. In this Act, unless the context indicates otherwise –

“Administration of Estates Act” means the Administration of Estates Act, 1966 (Act 56 of 1966);

“adult” means a person -

(a) who has attained the age of majority in terms of section 1 of the Age of Majority Act, 1972 (Act 57 of 1972) or who has been declared to be a major in terms of section 2 of that Act; or

(b) who has contracted a legal marriage.

“agent” means a person who is authorised to act for a principal under an enduring power of attorney granted in terms of this Act;

“bank” means a bank registered in terms of the Banks Act, 1990 (Act 94 of 1990) or a mutual bank registered in terms of the Mutual Banks Act, 1993 (Act 124 of 1993);

Constitution” means the Constitution of the Republic of South Africa, 1996;

“Court” means the High Court having jurisdiction;

“curator” means a curator as defined in section 1 of the Administration of Estates Act, 1965 (Act 66 of 1965);

“enduring power of attorney” means an enduring power of attorney as contemplated in section 70;

“general authority” means general authority to act on behalf of a person with incapacity contemplated in section 6;

“health care” means any examination, procedure, service or treatment that is done for a therapeutic, preventive, palliative, diagnostic or other health related purpose;

“incapacity” means decision-making incapacity contemplated in section 4 and “incapacitated” has a corresponding meaning;

“joint agent” means one of two or more agents who have been granted authority under an enduring power of attorney;

“magistrate” means a magistrate as defined in the Magistrates Act, 1993 (Act 90 of 1993);

“manager” means a person appointed in terms of section 22 to care for and manage the property of an adult with incapacity;

“Master” means the Master of the High Court within whose area of jurisdiction the matter concerned is to be dealt with and includes a Deputy Master and an Assistant Master;

“Master’s office” means an office of the Master as contemplated in section 3 of the Administration of Estates Act, 1965 (Act 66 of 1965);

“medical practitioner” means a person registered as such in terms of the Health Professions Act, 1974 (Act 56 of 1974);

“Mental Health Care Act” means the Mental Health Care Act, 2002 (Act 17 of 2002);

“mentor” means a person appointed in terms of section 49 to take care of the personal welfare of an adult with incapacity;

“Minister” means a Cabinet member responsible for justice;

“minor with incapacity” means a person who is not an adult as defined in this section, and who is without capacity as provided for in section 4;

“National Health Act” means the National Health Act, 200….. (Act …. of ….);

“personal welfare” means any matter relating to the person of an adult with incapacity not relating to “property” as defined in this section and includes health care;

“prescribed” means prescribed by regulation;

“principal” means an adult who grants an enduring power of attorney in terms of this Act;

“property” includes income, finance, business or undertaking and any contingent interest in property;

“relative” means a mentally competent person who is the spouse, parent, adult child or a sibling of the person concerned;

“Republic” means the Republic of South Africa;

“specific intervention order” means an order contemplated in section 11;

“spouse” means a spouse in the legal sense and includes a spouse according to any law, custom or religion and a partner in a permanent same-sex life partnership;

“this Act” includes the Regulations;

“sign” includes –

(a) the making of initials; and

(b) in the case of the principal executing an enduring power of attorney, the making of a mark or the placing of a thumb print;

“substitute agent” means an agent who has been appointed by the principal in an enduring power of attorney as a substitute as contemplated in section 75(3).

CHAPTER 1

FUNDAMENTAL PROVISIONS

Objects of Act

2. The object of this Act is to regulate ways in which decisions may lawfully be made on behalf of an adult with incapacity by -

(a) providing for statutory authority to make such decisions;

(b) enabling an agent under an enduring power of attorney to make such decisions;

(d) establishing general principles according to which such decision-making must take place; and

(e) providing for safeguards to protect the interests of adults with incapacity where other persons are authorised to make decisions on their behalf.

Application of Act

3. Subject to section 10, this Act does not enable anything to be done for, or a decision to be made on behalf of, a person who is not an adult.

Adult with incapacity

4. (1) An adult is an adult with incapacity if at the time a decision needs to be made he or she is unable, temporarily or permanently and irrespective of the cause –

(a) to make the decision for him- or herself on the matter in question; or

(b) to communicate his or her decision on that matter.

(2) An adult is unable to make a decision for him- or herself as contemplated in subsection (1)(a) if he or she is unable -

(a) to understand or retain the information relevant to the decision; or (b) to make an informed, rational decision based on that information.

(3) An adult must not be regarded as unable to understand the information referred to in subsection (2)(a) if he or she is able to understand an explanation of the information in broad terms and in simple language.

(4) An adult must not be regarded as unable to make a decision referred to in subsection (2)(b) merely because he or she makes a decision which would not be made by a person of ordinary prudence.

(5) An adult must not be regarded as unable to communicate his or her decision referred to in subsection (1)(b) unless all practicable steps to enable communication of the decision has been taken without success.

Intervention to be in best interests of adult with incapacity

5. (1) Any intervention in the affairs of an adult with incapacity in terms of this Act must be in the best interests of such adult.

(2) In deciding what is in an adult’s best interests -

(a) it must be established that the intervention is the least restrictive option in relation to the freedom of the adult, consistent with the purpose of the intervention;

(b) it must be taken into account that -

(i) no intervention should take place unless it is necessary with regard to the individual circumstances and needs of the adult; and

(ii) intervention is unnecessary if any less formal arrangements can be made or any assistance can be provided by relatives or by others;

(c) it must recognised that the adult must be encouraged to participate, or to improve his or her ability to participate, as fully as possible in anything done for and any decision affecting him or her;

(d) the cultural environment, values and beliefs of the adult must be taken into account in so far as it is reasonable and practicable to do so;

(e) the adult’s past and present wishes and feelings in relation to the intervention must, in so far as they are ascertainable, be taken into account;

(f) account must be taken, in so far as it is reasonable and practicable to do so, of the views of –

(i) any person named by the adult as someone to be consulted;

(ii) the relatives and the primary carer of the adult;

(iii) a curator, manager, mentor or agent who has powers relating to the proposed intervention;

(iv) any person whom the Master or the Court has directed to be consulted; and

(v) any other person appearing to the person responsible for authorising or effecting the intervention to have an interest in -

(aa) the welfare of the adult; or

(bb) the proposed intervention,

where these views have been made known to the person responsible.

(3) The principles in subsection (2) must not exclude consideration of any relevant factor in a particular case.

(4) For purposes of this section “intervention” means –

(a) anything done;

(b) any decision taken; or

for, on behalf of, or in relation to an adult with incapacity, including anything done or any decision taken in pursuance of an appointment as manager, mentor or agent.

CHAPTER 2

DEFAULT AUTHORITY

TO ACT ON BEHALF OF ADULT WITH INCAPACITY

General authority to act

6. Subject to section 8, anything may be done for the personal welfare of an adult with incapacity if -

(a) it is reasonable for it to be done by the person who does it in relation to the matter in question; and

(b) if it is reasonably believed by the person who does it to be in the best interests of the adult with incapacity.

Expenditure in relation to general authority to act

7. (1) (a) Where any action in terms of section 6 involves expenditure –

(i) the credit of the adult with incapacity may be pledged for that purpose; and

(ii) money in possession of the adult with incapacity may be applied to meet the expenditure; and

(b) if the expenditure contemplated in paragraph (a) is borne by another person, that person shall be entitled –

(i) to reimburse him- or herself out of any such money; or

(ii) to be otherwise indemnified by the adult with incapacity.

(2) For purposes of this section “expenditure” means reasonable expenses incurred for goods supplied or services rendered during the course of any action taken in terms of section 6: Provided that -

(a) such goods or services was necessary and useful in relation to the action taken; and

(b) the expenses was suitable in relation to –

(i) the standard of living of the adult concerned; and

(ii) his or her actual requirements at the time when the goods are supplied or the services rendered.

Restrictions on general authority to act

8. (1) With the exception of taking any steps necessary to avert a substantial risk of serious harm to the adult with incapacity concerned, section 6 does not authorise –

(a) the use of, or threat of, force to enforce the doing of anything to which the adult objects; or

(b) the detention or confinement of the adult.

(2) (a) Subject to paragraph (b), section 6 does not authorise the doing of anything for the adult concerned which is contrary to directions given, or inconsistent with a decision made, within the scope of his or her authority by -

(i) a curator appointed by the Court in respect of the person or property of such adult;

(ii) an administrator appointed in terms of Chapter VIII of the Mental Health Care Act to care for and administer the property of such adult;

(iii) a manager appointed in respect of the property, or a mentor appointed in respect of the personal welfare, of such adult in terms of this Act; or

(iv) an agent acting under an enduring power of attorney granted in respect of such adult in terms of this Act.

(b) paragraph (a) does not preclude any action necessary to prevent the death of the adult concerned or a serious deterioration in his or her condition while an order with regard to a matter in question is sought from a Court.

(3) The authority under section 6 does not extend to giving or refusing consent on behalf of, or in relation to, an adult with incapacity which is required in terms of -

(a) the Mental Health Care Act; or

(b) the National Health Act.

Authority in relation to signing power on bank account

9. (1) If an adult granted his or her spouse signing power in respect of such adult’s bank account and such adult becomes an adult with incapacity after granting the power and while the power is still in force, the signing power granted shall, subject to subsection (2), continue to be valid despite the adult’s incapacity.

(2) (a) A spouse is not entitled to use the continuing signing power referred to in subsection (1) for any purpose other than the payment of the reasonable living expenses of the adult with incapacity concerned.

(b) For purposes of this subsection “reasonable living expenses” include expenses in respect of the common household of the spouses that had directly before the incapacity of such adult been paid out of his or her bank account.

(3) Any interested person may at any time apply to a Master for an order -

(a) terminating the continuing signing power referred to in subsection (1); or

(b) limiting the purposes for which such power may be used.

(4) In disposing of an application made under subsection (3) the Master may make any ruling he or she deems fit in the interests of the adult with incapacity concerned which interests may include the well-being of the spouse and minor children of such adult.

(5) A continuing signing power referred to in subsection (1) terminates on the dissolution of the marriage, customary or religious union, or permanent same sex life partnership between the adult with incapacity concerned and his or her spouse.

(6) Section 8(2) apply, with the necessary changes, to any authority in relation to a continuing signing power on a bank account under this section.

Authority to act in respect of minors who become adults with incapacity

10. (1) If a minor with incapacity becomes an adult with incapacity contemplated in section 4, the legal guardian or joint legal guardians who has or have jointly, as the case may be, exercised the powers of guardianship over such minor immediately before he or she became an adult with incapacity, shall, without limiting any power such persons may have in terms of the common law, for all purposes be deemed to have been appointed -

(a) as manager or joint managers, as the case may be, in terms of Chapter 4 of this Act in respect of the property; and

(b) as mentor or joint mentors, as the case may be, in terms of Chapter 5 of this Act in respect of the personal welfare,

of such adult with incapacity.

(2) Unless the Master, on application by any interested person, directs otherwise, a guardian deemed to have been appointed as contemplated in subsection (1) shall not be required to –

(a) furnish security in terms of section 25;

(b) lodge accounts with the Master in terms of section 36; and

(3) (a) Any interested person may at any time apply to a Master for an order -

(i) terminating the appointment deemed to have been made as contemplated in subsection (1); or

(ii) limiting the purposes for which such appointment may be used.

(b) In disposing of an application made under paragraph (a) the Master may make any ruling he or she deems fit in the interests of the adult with incapacity concerned.

(4) (a) The Master may at any time require a guardian who has been deemed to have been appointed under subsection (1) to apply for appointment in terms of this Act as manager or mentor or both, as the case may be.

(b) An application referred to in paragraph (a) must be made within 30 days of the Master so requiring and must be disposed of in terms of this Act.

(c) An appointment in pursuance of an application referred to in paragraph (a) shall have all the consequences of an appointment as manager or mentor, or both as the case may be, as provided for in this Act.

(d) A guardian who has been deemed to have been appointed under subsection (1) and who fails to apply for appointment within the period required in subsection (4)(b), or such further period as the Master may allow, shall from the date of the expiry of such period no longer be deemed to be the manager or mentor or both as the case may be, of the adult with incapacity concerned.

CHAPTER 3

SPECIFIC INTERVENTION ORDERS

IN RESPECT OF PROPERTY AND PERSONAL WELFARE

Power of Master to make specific intervention order

11. (1) A Master may, on consideration and processing of an application submitted in terms of section 12 make a specific intervention order in respect of a matter concerning the property or personal welfare of an adult with incapacity.

(2) A Master may, in a specific intervention order contemplated in subsection (1) -

(a) make a decision, or direct the taking of any action, specified in the order; or

(b) authorise a person nominated in the application to make such decision or to take such action,

in relation to the property or personal welfare of the adult with incapacity concerned.

Application for order

12. (1) Any person over the age of 18 may apply to a Master for a specific intervention order in respect of an adult with incapacity.

(2) The application must be made in writing, under oath or solemn affirmation, and must –

(a) set out the relationship of the applicant to that adult and –

(i) if the applicant is not a spouse or relative of that adult, the reason why the spouse or relative did not make the application; and

(ii) if they are not available to make the application, what steps were taken to establish their whereabouts before making the application;

(b) include all medical certificates or reports relevant to the adult’s incapacity relating to his or her property or personal welfare, as the case may be;

(c) set out the grounds on which the applicant believes that the adult is incapacitated in respect of his or her property or personal welfare;

(d) state that, within seven days immediately before submitting the application, the applicant had seen that adult;

(e) give the particulars and contact details of persons who may provide further information relating to the state of incapacity of the adult concerned;

(f) state the particulars of the adult concerned and his or her estimated property value and annual income; and

(g) nominate and give the particulars of a suitable person for purposes of section 11(2)(b).

(3) The applicant must attach to the application proof –

(a) that a copy of the application has been submitted to the adult with incapacity or that such adult has consented to the application being made; and

(b) if the adult concerned has a primary carer, that a copy of the application has also been submitted to such carer.

Disposal of application and security

13. (1) The Master must, within 30 days of receiving the application contemplated in section 12 -

(a) make a specific intervention order contemplated in section 11(2) if the Master is satisfied that the adult concerned is an adult with incapacity as contemplated in section 4; or

(b) refuse to make such order.

(2) In considering an application under section 12 the Master must, in addition to the matters contemplated in section 5, take into account -

(a) any specific intervention order; or

(b) any order for the appointment of a manager or mentor

which has been previously made in terms of this Act with respect to the adult concerned.

(3) The Master must, in writing inform –

(a) the applicant; and

(b) the adult with incapacity concerned,

of his or her decision and the reasons thereof.

(4) In the case of an application in respect of the property of an adult with incapacity, the Master may before making an intervention order, if -

(a) such order authorises a person nominated in the application to make a decision or to take action; and

(b) the Master is satisfied that in the circumstances of the case it is necessary to do so,

require such person to furnish security for the amount determined by the Master.

Legal effect of order

14. Anything done under a specific intervention order shall have the same effect as if done by the adult concerned if he or she had the capacity to do so.

Restrictions

15. Sections 39, 40, 41 and 42 relating to restrictions on managers and sections 61, 62 and 63 relating to restrictions on mentors apply, with the necessary changes, to any person authorised to act under an intervention order in terms of section 11.

Notification of address

16. A person authorised under a specific intervention order in terms of section 11, must furnish the Master in writing with an address for the service upon him or her of notices and process.

Records

17. (1) Any person authorised under a specific intervention order must keep a record of his or her decisions or activities in terms of such order.

(2) A Master may call upon a person authorised under a specific intervention order to submit to him or her the record referred to in subsection (1) at such times as the Master may direct.

Care, diligence and skill required of person authorised

18. (1) A person authorised under an intervention order must, in the performance of his or her duties and the exercise of his or her powers act with the care, diligence and skill which can reasonably be expected of a person who manages the affairs of another.

(2) Any agreement or unilateral juristic act which has the effect of exempting a person authorised under a specific intervention order, or indemnifying him or her, against liability for failing to show the necessary care, diligence and skill required in terms of subsection (1), is void in so far as it has such effect.

Reimbursement

19. A person authorised under a specific intervention order is entitled to be reimbursed out of the estate of the adult with incapacity concerned for his or her reasonable expenses incurred in doing anything directed or authorised under such order.

Account or report on completion of duties

20. (1) Any person who completed his or her duties in terms of a specific intervention order granted under section 11 must –

(a) not later than thirty days thereafter; or

(b) within such further period as the Master may allow,

lodge with the Master an account or report of his or her activities in respect of the property or personal welfare, as the case may be, of the adult with incapacity concerned.

(2) An account referred to in subsection (1)(b) must be supported by vouchers, receipts and acquittances.

Discharge

21. (1) Upon the completion, to the satisfaction of the Master, of his or her duties in respect of the property or personal welfare of the adult with incapacity concerned, a person authorised under a specific intervention order shall be entitled to obtain his or her discharge from the Master.

(2) After three years have elapsed from the date upon which a person has been discharged under subsection (1) he or she may, with the written consent of the Master, destroy all books and documents in his or her possession relating to his or her activities in respect of the adult with incapacity concerned.

CHAPTER 4

MANAGEMENT OF PROPERTY

Part 1

Appointment of manager

Power of Master to appoint manager

22. (1) A Master may, on consideration and processing of an application submitted in terms of section 23 appoint a manager to care for and manage the property of an adult with incapacity.

(2) When deciding whether it is in the adult’s best interests to appoint a manager a Master must, in addition to the matters contemplated in section 5, take into account that –

(a) where the adult concerned needs assistance with regard to a single matter or a limited range of matters with regard to his or her property a specific intervention order contemplated in section 11 is to be preferred to the appointment of a manager; and

(b) the powers conferred on a manager should be as limited in scope and duration as possible.

Application to appoint manager

23. (1) Any person over the age of 18 may apply to a Master to appoint a manager.

(2) The application must be made in writing, under oath or solemn affirmation, and must –

(a) set out the relationship of the applicant to the adult with incapacity concerned and –

(i) if the applicant is not a spouse or relative of that adult, the reason why the spouse or relative did not make the application; and

(ii) if they are not available to make the application, what steps were taken to establish their whereabouts before making the application;

(b) include all medical certificates or reports relevant to the adult’s incapacity relating to the care and management of his or her property;

(c) set out the grounds on which the applicant believes that the adult is incapacitated in respect of the care and management of his or her property;

(d) state that, within seven days immediately before submitting the application, the applicant had seen the adult with incapacity;

(e) give the particulars and contact details of persons who may provide further information relating to the state of incapacity of the adult concerned;

(f) state the particulars of the adult with incapacity concerned and his or her estimated property value and annual income; and

(g) nominate and give the particulars of a suitable person to be appointed as manager.

(3) The applicant must attach to the application proof –

(a) that a copy of the application has been submitted to the adult with incapacity concerned or that such adult has consented to the application being made; and

(b) if the adult concerned has a primary carer, that a copy of the application has also been submitted to such carer.

Disposal of application

24. (1) The Master must, within 30 days of receiving the application contemplated in section 23 -

(a) appoint a manager -

(i) for a period of three years; or

(ii) such other period, including an indefinite period, as on good cause shown, he or she may determine,

if the Master is satisfied that the adult concerned is incapacitated as contemplated in section 4 with relation to the care and management of his or her property;

(b) decline to appoint a manager; or

(2) The Master must, in writing inform -

(a) the applicant; and

(b) the adult with incapacity concerned,

of his or her decision and the reasons thereof.

(3) (a) An appointment of a manager is effective from the date on which the Master signs an official letter of such appointment.

(b) The Master must issue a manager appointed in terms of this section with a copy of such letter of appointment.

(4) The Master may, pending the appointment of a manager under subsection (1), appoint an interim manager to perform all, or any, of the tasks in respect of which a manager may be appointed in terms of this Act.

Security

25. The Master may, if satisfied that in the circumstances of the case it is necessary to do so –

(a) before signing an official letter of appointment contemplated in section 24(3), require a manger to furnish security for the amount determined by such Master; and

(b) at any time after the appointment of a manager -

(i) require the manager to furnish security;

(ii) reduce or discharge any security given; or

(iii) require the manager to furnish additional security.

Who may be appointed

26. (1) A person appointed as manager must be -

(a) a mentally competent adult; or

(b) an officer of a juristic person who has been nominated to act on behalf of such juristic person,

who the Master considers suitable for such appointment.

(2) In determining if an individual is suitable for appointment as manager the Master –

(a) must give preference to -

(i) the express preference of the adult with incapacity concerned, except where good cause exists for not giving effect to such preference; or

(ii) where the adult with incapacity has not indicated an express preference, the primary carer of the adult concerned and failing such a relative of such adult in the order in which the relatives are enumerated in the definition of “relative” in section 1; and

(b) must have regard to –

(i) the accessibility of the individual to the adult with incapacity and to his or her primary carer;

(ii) the ability of the individual to carry out the functions of manager;

(iii) any likely conflict of interest between the adult with incapacity and the individual;

(iv) any undue concentration of power which is likely to arise in the individual over the adult with incapacity;

(v) any adverse effects which the appointment of the individual would have on the interests of the adult with incapacity which interests may include the well-being of the spouse and minor children of such adult; and

(vi) such other matters as appear to the Master to be appropriate.

(3) The Master may not appoint an individual as manager unless he or she is satisfied that such individual –

(a) is aware of the circumstances and condition of the adult with incapacity concerned and of the needs arising form such circumstances and condition;

(b) is aware of the powers, functions and restrictions on a manager; and

(4) The Master may appoint one or more individuals to act jointly in respect of the management and care of the property of an adult with incapacity in terms of this Act.

Renewal of appointment

27. (1) At any time before the end of a period in respect of which –

(a) a manager has been appointed; or

(b) a manager’s appointment has been renewed in terms of this section,

such manager may apply to the Master for renewal of his or her appointment.

(2) Where an application for renewal is made in terms of subsection (1), the appointment referred to in that subsection shall continue to have effect until the application for renewal is determined by the Master.

(3) Subject to subsection (4), sections 23, 24, 25 and 26 apply, with the necessary changes, for purposes of making and disposing of an application in terms of this section.

(4) Where an application is granted under this section, the Master may appoint a manager for -

(a) a period of 5 years; or

(b) such other period, including an indefinite period, as on good cause shown, the Master may determine.

Legal effect of appointment

28. (1) A manager is the agent of the adult with incapacity in respect of whom he or she has been appointed in relation to anything done or decided by such manager within the scope of his or her appointment and in accordance with this Act.

(2) An adult with incapacity in respect of whom a manager has been appointed has no capacity to -

(a) enter into any contract;

(b) perform any unilateral juristic act; or

in relation to any matter which is within the scope of the authority conferred on the manager except where such adult has been authorised by the manager in terms of authority granted under section 29(a)(ii) to enter into such contract, perform such juristic act or take such decision.

Part 2

Powers and duties of manager

Powers conferred by letter of appointment

29. Subject to sections 39, 40, 41 and 42 a Master may in a letter of appointment contemplated in section 24(3) –

(a) authorise a manager –

(i) to care for and manage the property, or such parts thereof as may be specified in the letter, of the adult with incapacity concerned; and

(ii) to allow the adult concerned to enter into a contract, perform a unilateral juristic act or take a decision with relation to such adult’s property as the manager may specify;

(b) make such further orders or give such directions and confer on a person appointed as manager such powers as the Master thinks

necessary or expedient for giving effect to such appointment; and

(c) make any order granted by him or her subject to such conditions and restrictions as appear to him or her to be appropriate.

Taking custody of property

30. (1) A manager must immediately after a letter of appointment has been issued to him or her take into his or her custody or under his or her control –

(a) the property in respect of which he or she has been appointed; and

(b) any books or documents relating to such property.

(2) If the manager suspects that any property, book or document referred to in subsection (1) is being concealed or otherwise unlawfully withheld from him or her, he or she may apply to the magistrate within whose area such property, book or document is suspected to be, for a search warrant.

(3) If it appears to a magistrate to whom such application is made, from an affidavit, that there are reasonable grounds to suspect that any property, book or document referred to in subsection (1) is -

(a) being concealed upon any person or at any place or upon or in any vehicle or vessel or container of any nature; or

(b) otherwise unlawfully withheld form the manager concerned,

within the area of jurisdiction of the said magistrate, he or she may issue a warrant authorising the manager, or a police officer, to search for and take possession of that property, book or document.

(4) The provisions of sections 21, 27 and 29 of the Criminal Procedure Act, 1977 (Act 51 of 1977) shall, in so far as they are applicable, apply with the necessary changes, with regard to the execution of a warrant referred to in subsection (3).

Lodging of and updating inventory of property

31. (1) A manager must –

(a) within 30 days after a letter of appointment has been issued to him or her, or within such further period as the Master may allow, lodge with the Master an inventory of the property to be taken care of and managed by him or her; and

(b) thereafter, whenever he or she comes to know of any such property which is not mentioned in an inventory referred to in paragraph (a), within –

(i) 14 days after he or she has come to know of such property; or

(ii) such further period as the Master may allow,

lodge with the Master an additional inventory thereof.

(2) The inventory and additional inventory referred to in subsection (1) must -

(a) be in the prescribed form;

(b) be signed by the manager; and

(c) if any immovable property is included in such inventory, contain all particulars known to the manager concerning such property.

(3) A manager may not dispose of any property which he or she has been appointed to take care of and manage if that property has not been mentioned in any inventory or additional inventory lodged by him or her with the Master in terms of this section, unless such manager does so in the ordinary course of any business or undertaking carried on by him or her as manager.

Banking accounts and investments

32. (1) A manager –

(a) must open a cheque account in the name of the estate of the adult with incapacity concerned with a bank within the Republic and must deposit therein all moneys received by him or her on behalf of the estate;

(b) may -

(i) open a savings account in the name of the estate of the adult with incapacity concerned with a bank within the Republic and may transfer thereto from the account referred to in paragraph (a) moneys not immediately required for the payment of any claim against the estate; and

(ii) place money deposited in an account referred to in paragraph (a) and not immediately required for the payment of any claim against the estate, on interest-bearing deposit with a Bank within the Republic.

(2) Whenever required by a Master to do so, a manager must –

(a) notify the Master in writing of the Bank and branch office or agency thereof with which he or she has opened an account or placed a deposit referred to in subsection (1); and

(b) furnish the Master with a bank statement or other sufficient evidence of the state of the account.

(3) A manager who complied with a request of the Master referred to in subsection (2)(a), may not without written notice to the Master transfer any such account from any such Bank, branch office or agency to any other Bank, branch office or agency.

(4) All cheques or orders drawn upon an account referred to in subsection (1), must -

(a) contain the name of the payee and the cause of payment;

(b) be drawn to order;

(5) The Master and any surety for the manager shall have the same right to information in regard to an account referred to in subsection (1) as the manager him- or herself has and may examine all vouchers in relation thereto, whether in the hands of the bank or the manager.

(6) The Master may direct the manager of any office or branch of a Bank with which an account has been opened under subsection (1), to refuse, except with the consent of the Master, any further withdrawals of money from that account and shall notify the manager of the adult with incapacity concerned of any such direction.

Failure to deposit money in banking accounts

33. (1) Subject to subsection (2), a manager –

(a) who fails to deposit money in any banking account when required by or under this Act to do so; or

(b) who uses or knowingly permits any joint manager to use any property in the estate of the adult concerned except for the benefit of such estate,

shall, in addition to any other penalty to which he or she may be liable, be liable to pay into such estate an amount equal to double the amount which he or she has so failed to deposit, or double the value of the property so used.

(2) A Master may, on good cause shown, exempt a manager, in whole or in part, from any liability which he or she may have incurred under subsection (1).

Lodging of documents in case of transfer of immovable property

34. A manager who wants to effect transfer of any immovable property in pursuance of a sale must, in addition to any deed or document which he or she may by law be required to lodge with the officer charged with the registration of such property, lodge with such officer a certificate by the Master that no objection to such transfer exists.

Notification of address and change of circumstances

35. (1) A manager must, at the time of his or her appointment in terms of this Act, furnish the Master in writing with an address for the service upon him or her of notices and process.

(2) A manager must notify the Master of -

(a) any change in the address -

(i) supplied to the Master in terms of subsection (1); and

(ii) of the adult with incapacity concerned;

(b) the death of the adult with incapacity concerned; and

(c) any event which may result in the withdrawal of such manager’s letter of appointment by the Master in terms of section 45(2)(a)(ii), 45(2)(b) and (c).

(3) If a manager -

(a) dies, his or her executor contemplated in section 1 of the Administration of Estates Act must, if aware of such appointment, notify the Master of the death of the manager; or

(b) becomes incapacitated as contemplated in section 4, his or her primary carer must, if aware of such appointment, notify the Master of the incapacity of such manager.

(4) A manager may not be absent from the Republic for a period exceeding 60 days unless he or she –

(a) notifies the Master of this intention before the commencement of such intended absence; and

(b) complies with such conditions as the Master may think fit to impose.

(5) Any notification of the Master in terms of –

(a) subsections (2) and (3) must be done within 14 days of the occurrence of the event to be notified or as soon as possible thereafter; and

(b) subsections (2), (3) and (4) must be -

(i) in writing; and

(ii) sent by registered post or be delivered by hand for which delivery an acknowledgement of receipt must be obtained.

Accounts

36. (1) A manager must –

(a) on or before the date in every year which the Master may in each case determine, lodge with the Master an account in the prescribed form of his or her management of the property of the adult concerned during the year ending upon a date three months prior to the date so determined; and

(b) if required to do so by the Master by notice in writing produce, within a period specified in the notice, for inspection –

(i) by the Master; or

(ii) by any person nominated by the Master for this purpose,

any securities held by him or her as manager.

(2) Any person who ceases to be a manager, must -

(a) not later than thirty days thereafter; or

(b) within such further period as the Master may allow,

lodge with the Master an account in the prescribed form of his or her management of the property of the adult concerned between the date up to which his or her last account was rendered under subsection (1) and the date on which he or she ceased to be a manager for such adult.

(3) The account referred to -

(a) in subsection (1) must -

(i) be supported by vouchers, receipts and acquittances;

(ii) include a statement of all property under the manager’s control at the end of the year-period referred to in subsection (1)(a); and

(iii) if such manager carries on any business or undertaking in his or capacity as manger, also include a statement relating to such business or undertaking.

(b) in subsection (2) must -

(i) be supported by vouchers, receipts and acquittances; and

(ii) include a statement of all property under the manager’s control immediately before he or she ceased to be manager.

Care, diligence and skill required of manager

37. (1) A manager must, in the performance of his or her duties and the exercise of his or her powers act with the care, diligence and skill which can reasonably be expected of a person who manages the affairs of another.

(2) Any act or agreement which has the effect of exempting a manager, or indemnifying him or her, against liability for failing to show the necessary care, diligence and skill required in terms of subsection (1), is void in so far as it has such effect.

Remuneration

38. (1) A manager is, subject to subsection (2), entitled to receive out of the property of the adult concerned, or the income derived from such property a remuneration which is assessed according to the prescribed tariff and which must be taxed by the Master.

(2) The Master may –

(a) reduce or increase the remuneration referred to in subsection (1) if there are in any particular case special reasons for doing so; or

(b) disallow any such remuneration either wholly or in part, if –

(i) the manager failed to discharge his or her duties; or

(ii) discharged them in an unsatisfactory manner.

Part 3

Restrictions on manager

General restrictions

39. A manager may not do anything or make any decision on behalf of an adult with incapacity -

(a) if the manager knows, or has reasonable grounds for believing, that the adult has recovered capacity in relation to the matter with regard to which such action is to be taken or such decision is to be made; or

(b) which is inconsistent with a decision made, within the scope of his or her authority and in accordance with this Act, by the agent under an enduring power of attorney granted by such adult.

Restriction on alienation or mortgage of immovable property

40. A manager may not alienate or mortgage any immovable property which he or she has been appointed to care for and manage unless –

(a) authorised to do so by the Master in a letter of appointment granted in terms of section 24(3);

(b) authorised to do so by a Court order; or

Restriction on purchase of property

41. A manager, his or her spouse, child, parent, partner, associate or agent may not purchase, or otherwise acquire, any property which such manager has been appointed to care for and manage unless -

(a) authorised to do so by a Court order;

(b) with the consent of the Master; or

(c) the purchase or acquisition was, in writing, legally authorised by the adult concerned before he or she became an adult with incapacity.

No substitution or surrogation

42. A manager may not substitute or surrogate any other person to act in his or her place.

Part 4

Termination

Resignation of manager

43. (1) A manager who wishes to resign must in writing give notice of such intention to the Master.

(2) The resignation becomes effective –

(a) where joint managers have been appointed, on receipt by the Master of written confirmation by the remaining joint manager that he or she is willing to continue to act; or

(b) where no joint manager has been appointed, only when the Master has appointed a manager in terms of section 91(3).

(3) On receiving the written confirmation contemplated in subsection (2)(a), the Master must issue a remaining joint manager with a new letter of appointment contemplated in section 24(3).

Termination of appointment on adult recovering from incapacity

44. (1) An adult in respect of whom a manager has been appointed in terms of section 22 may apply to the Master to terminate the appointment of such manager.

(2) The application must -

(a) be made in writing; and

(b) include all medical certificates or reports relevant to the applicant’s present and future ability with relation to the care and management of his or her property.

(3) The Master must, within 30 days of receiving the application -

(a) terminate the appointment of the manager if the Master is satisfied that the adult concerned has sufficiently recovered from his or her incapacity contemplated in section 4 to care for and manage his or her property him- or herself; or

(b) decline the application.

(4) The Master must, in writing, inform –

(a) the applicant; and

(b) the manager concerned

of his or her decision and the reasons thereof.

(5) Where the appointment of a manager has been terminated in terms of this section, such manager may be discharged from office only after he or she has completed his or her duties to the satisfaction of the Master.

Withdrawal of appointment by Court or Master

45. (1) A Court may at any time, upon application of the Master or any interested person -

(a) withdraw the appointment of a manager made in terms of this Act; and

(b) direct the Master to cancel the letter of appointment issued to such manager,

if the Court is of opinion that good cause exists for doing so.

(2) A Master may withdraw the appointment of a manager –

(a) if the manager –

(i) fails to perform satisfactorily any duty imposed upon him or her by or under this Act or refuses or fails to comply with any lawful request of the Master;

(ii) has been convicted in the Republic or elsewhere of any offence of which dishonesty is an element, or any other offence for which he or she has been sentenced to imprisonment without the option of a fine; or

(iii) suffers from any incapacity contemplated in section 4;

(b) if the manager’s estate is sequestrated or, where a juristic person has been appointed as manager if such juristic person is wound up or dissolved;

(c) on the dissolution of a marriage or permanent same sex life partnership between the adult with incapacity concerned and the manager; or

(d) on the appointment by a Court of a curator in respect of the property of the adult concerned in so far as the appointment of the curator relates to duties which may be exercised by the manager.

(3) Before the withdrawal of an appointment under subsection (2), the Master must forward to the manager concerned, by registered post, a notice -

(a) setting out the reasons for such withdrawal; and

(b) informing such manager that he or she may, within thirty days of such notice, apply to the Court for an order restraining the Master form withdrawing the appointment.

Cancellation of letter of appointment

46. (1) Where in terms of this Act -

(a) a manager resigned;

(b) the appointment of a manager is withdrawn; or

the Master must cancel the letter of appointment issued in respect of such manager.

(2) In the case of joint managers reference to “manager” in subsection (1) must be interpreted as a reference to the joint managers or to the last remaining joint manager, as the case may be.

Return of letter of appointment

47. Any person who ceases to be a manager must forthwith return his or her letter of appointment to the Master.

Discharge

48. (1) Upon the completion, to the satisfaction of the Master, of the management of the property of the adult with incapacity concerned, a manager shall be entitled to obtain his or her discharge from the Master.

(2) After three years have elapsed from the date upon which a manager has been discharged under subsection (1) he or she may, with the written consent of the Master, destroy all books and documents in his or her possession relating to his or her duties as manager.

CHAPTER 5

CARE FOR PERSONAL WELFARE

Part 1

Appointment of mentor

Power of Master to appoint mentor

49. (1) A Master may, on consideration and processing of an application submitted in terms of section 50 appoint a mentor to take care of the personal welfare of an adult with incapacity.

(2) When deciding whether it is in the adult’s best interests to appoint a mentor the Master must, in addition to the matters contemplated in section 5, take into account that –

(a) where the adult concerned needs assistance with regard to a single matter, or a limited range of matters, with regard to his or her personal welfare an intervention order contemplated in section 11, is to be preferred to the appointment of a mentor; and

(b) the powers conferred on a mentor should be as limited in scope and duration as possible.

Application to appoint mentor

50. (1) Any person over the age of 18 may apply to the Master to appoint a mentor.

(2) The application must be made in writing, under oath or solemn affirmation, and must –

(a) set out the relationship of the applicant to that adult with incapacity concerned and –

(i) if the applicant is not a spouse or relative of that adult, the reason why the spouse or relative did not make the application; and

(ii) if they are not available to make the application, what steps were taken to establish their whereabouts before making the application;

(b) include all medical certificates or reports relevant to the adult’s incapacity relating to the care for his or her personal welfare;

(c) set out the grounds on which the applicant believes that the adult is incapacitated in respect of the care for his or her personal welfare;

(d) state that, within seven days immediately before submitting the application, the applicant had seen the adult with incapacity concerned;

(e) give the particulars and contact details of persons who may provide further information relating to the state of incapacity of the adult concerned;

(f) state the particulars of the adult with incapacity concerned and his or her estimated property value and annual income; and

(g) nominate and give the particulars of a suitable person to be appointed as mentor.

(3) The applicant must attach to the application proof –

(a) that a copy of the application has been submitted to the adult with incapacity concerned or that such adult has consented to the application being made; and

(b) if the adult concerned has a primary carer, that a copy of the application has also been submitted to such carer.

Disposal of application

51. (1) The Master must, within 30 days of receiving the application contemplated in section 50 -

(a) appoint a mentor -

(i) for a period of one year; or

(ii) such other period, including an indefinite period, as on good cause shown, he or she may determine,

if the Master is satisfied that the adult concerned is an adult with incapacity as contemplated in section 4 with relation to the care of his or her personal welfare;

(b) decline to appoint mentor; or

(2) The Master must, in writing inform -

(a) the applicant; and

(b) the adult with incapacity concerned,

of his or her decision and the reasons thereof.

(3) (a) An appointment of a mentor is effective from the date on which a master signs an official letter of such appointment.

(b) The Master must issue a mentor appointed in terms of this section with a copy of such letter of appointment.

(4) The Master may, pending the appointment of a mentor under subsection (1), appoint an interim mentor to perform all, or any, of the tasks in respect of which a mentor may be appointed in terms of this Act.

Who may be appointed

52. (1) A person appointed as mentor must be a mentally competent adult who the Master considers suitable for such appointment.

(2) In determining if an individual is suitable for appointment as mentor the Master –

(a) must give preference to -

(i) the express preference of the adult with incapacity concerned, except where good cause exists for not giving effect to such preference; or

(ii) where the adult with incapacity has not indicated an express preference, the primary carer of such adult and failing such a relative of such adult in the order in which the relatives are enumerated in the definition of “relative” in section 1; and

(b) must have regard to –

(i) the accessibility of the individual to the adult with incapacity concerned and to his or her primary carer;

(ii) the ability of the individual to carry out the functions of mentor;

(iii) any likely conflict of interest between the adult with incapacity concerned and the individual;

(iv) any undue concentration of power which is likely to arise in the individual over the adult;

(v) any adverse effects which the appointment of the individual would have on the interests of the adult with incapacity; and

(vi) such other matters as appear to him or her to be appropriate.

(3) The Master may not appoint an individual as mentor unless he or she is satisfied that such individual –

(a) is aware of the circumstances and condition of the adult with incapacity concerned and of the needs arising form such circumstances and condition;

(b) is aware of the powers, functions and restrictions on a mentor; and

(4) The Master may appoint one or more individuals to act jointly to take care of the personal welfare of an adult with incapacity in terms of this Act.

Renewal of appointment

53. (1) At any time before the end of a period in respect of which –

(a) a mentor has been appointed; or

(b) a mentor’s appointment has been renewed in terms of this section,

such mentor may apply to the Master for renewal of his or her appointment.

(3) Subject to subsection (4), sections 50, 51 and 52 apply, with the necessary changes, for purposes of making and granting an application in terms of this section.

(4) Where an application is granted under this section, the Master may appoint a mentor for -

(a) a period of one year; or

(b) such other period, including an indefinite period, as on good cause shown, the Master may determine.

Legal effect of appointment of mentor

54. (1) A mentor is the agent of the adult with incapacity in respect of whom he or she has been appointed in relation to anything done or decided by such mentor within the scope of his or her appointment and in accordance with this Act.

(2) An adult with incapacity in respect of whom a mentor has been appointed has no capacity to -

(a) enter into any contract;

(b) perform any unilateral juristic act; or

in relation to any matter which is within the scope of the authority conferred on the mentor except where such adult has been authorised by the mentor in terms of authority granted under section 55(a)(iii) to enter into such contract, perform such juristic act or take such decision.

Part 2

Powers and duties of mentor

Powers an duties conferred by letter of appointment

55. Subject to section 6, 62 and 63 a Master may in a letter of appointment contemplated in section 51(3) –

(a) authorise a mentor –

(i) to take care of the personal welfare, or such aspects thereof as may be specified in the letter, of the adult with incapacity concerned;

(ii) to, in accordance with the provisions of the National Health Act, consent to the provision of health care to the adult concerned; and

(iii) to allow the adult concerned to enter into a contract, perform a unilateral juristic act or take a decision with relation to such adult’s personal welfare as the mentor may specify;

(b) make such further orders or give such directions and confer on a person appointed as mentor such powers as the Master thinks necessary or expedient for giving effect to such an appointment; and

(c) make any order granted by him or her subject to such conditions and restrictions as appear to him or her to be appropriate.

Keeping of records

56. A mentor must after his or her appointment, commence to maintain and thereafter maintain and update a record of the exercise of his or her powers.

Notification of address and change of circumstances

57. (1) A mentor must, at the time of his or her appointment in terms of this Act, furnish the Master in writing with an address for the service upon him or her of notices and process.

(2) A mentor must notify the Master of -

(a) any change in the address -

(i) supplied to the Master in terms of subsection (1); and

(ii) of the person with incapacity concerned;

(b) the death of the person with incapacity concerned; and

(c) any event which may result in the withdrawal of such mentor’s letter of appointment by the Master in terms of sections 66(2)(a)(ii), 66(2)(b) and (c).

(3) If a mentor -

(a) dies, his or her executor contemplated in section 1 of the Administration of Estates Act must, if aware of such appointment, notify the Master of the death of the mentor; or

(b) becomes incapacitated as contemplated in section 4, his or her primary carer must, if aware of such appointment, notify the Master of the incapacity of such mentor.

(4) A mentor may not be absent from the Republic for a period exceeding 60 days unless he or she –

(a) notifies the Master of this intention before the commencement of such intended absence; and

(b) complies with such conditions as the Master may think fit to impose.

(5) Any notification of the Master in terms of –

(a) subsections (2) and (3) must be done within 14 days of the occurrence of the event to be notified or as soon as possible thereafter; and

(b) subsections (2), (3) and (4) must be -

(i) in writing; and

(ii) sent by registered post or be delivered by hand for which delivery an acknowledgement of receipt must be obtained.

Reports

58. (1) A mentor must on or before the date in every year which the Master may in each case determine, lodge with the Master a report, in the form required by the Master, of his or her activities in respect of the adult with incapacity concerned during the year ending upon a date three months prior to the date so determined.

(2) Any person who ceases to be a mentor, must –

(a) not later than thirty days thereafter; or

(b) within such further period as the Master may allow,

lodge with the Master a report, in the form required by the Master, of his or her activities in respect of the adult concerned between the date up to which his or her last report was rendered under subsection (1) and the date on which he or she ceased to be a mentor for such adult.

Care, diligence and skill required of mentor

59. (1) A mentor must, in the performance of his or her duties and the exercise of his or her powers act with the care, diligence and skill which can reasonably be expected of a person who takes care of the personal welfare of another.

(2) Any act or agreement which has the effect of exempting a mentor, or indemnifying him or her, against liability for failing to show the necessary care, diligence and skill required in terms of subsection (1), is void in so far as it has such effect.

Remuneration and reimbursement

60. (1) A mentor is not entitled to any remuneration for his or her services.

(2) A mentor is entitled to be reimbursed out of the estate of the adult in respect of whose personal welfare the mentor has been appointed, for his or her reasonable expenses incurred in taking care of the personal welfare of such adult in terms of this Act.

Part 3

Restrictions on mentor

General restrictions

61. A mentor may not do anything or make a decision on behalf of an adult with incapacity -

(a) if the mentor knows, or has reasonable grounds for believing, that the adult has recovered capacity in relation to the matter with regard to which such action is to be taken or such decision is to be made; or

(b) which is inconsistent with a decision made, within the scope of his or her authority and in accordance with this Act, by the agent under an enduring power of attorney granted by such adult.

Restriction relating to health care

62. No authority granted to a mentor in terms of this Act extends to refusing consent to the carrying out, or continuation, of life-sustaining treatment.

No substitution or surrogation

63. A mentor may not substitute or surrogate any other person to act in his or her place.

Part 4

Termination

Resignation of mentor

64. (1) A mentor who wishes to resign after his or her appointment in terms of section 49 must in writing give notice of such intention to the Master.

(2) The resignation becomes effective –

(a) where joint managers have been appointed, on receipt by the Master of written confirmation by the remaining joint manager that he or she is willing to continue to act; or

(b) where no joint mentor has been appointed, only when the Master has appointed a mentor in terms of section 91(3).

(3) On receiving the written confirmation contemplated in subsection (2)(a), the Master must issue a remaining joint mentor with a new letter of appointment contemplated in section 51(3).

Termination of appointment on adult recovering from incapacity

65. (1) An adult in respect of whom a mentor has been appointed in terms of section 49 may apply to the Master to terminate the appointment of such mentor.

(2) The application must -

(a) be made in writing; and

(b) include all medical certificates or reports relevant to the applicant’s present and future ability to take care of his or her personal welfare.

(3) The Master must, within 30 days of receiving the application -

(a) terminate the appointment of the mentor if the Master is satisfied that the adult concerned has sufficiently recovered from his or her incapacity contemplated in section 4 to take care of his or her personal welfare him- or herself; or

(b) decline the application.

(4) The Master must, in writing, inform –

(a) the applicant; and

(b) the mentor concerned

of his or her decision and the reasons thereof.

(5) Where the appointment of a mentor has been terminated in terms of this section, such mentor may be discharged from office only after he or she has completed his or her duties to the satisfaction of the Master.

Withdrawal of appointment by Court or Master

66. (1) A Court may at any time, upon application of the Master or any interested person -

(a) withdraw the appointment of a mentor made in terms of this Act; and

(b) direct the Master to cancel the letter of appointment issued to such mentor,

if the Court is of opinion that good cause exists for doing so.

(2) A Master may withdraw the appointment of a mentor made in terms of this Act –

(a) if the mentor –

(i) fails to perform satisfactorily any duty imposed upon him or her by or under this Act or refuses or fails to comply with any lawful request of the Master;

(iii) suffers from any incapacity contemplated in section 4;

(b) if the mentor’s estate is sequestrated;

(c) on the dissolution of a marriage or permanent same sex life partnership between the adult with incapacity concerned and the mentor; or

(d) on the appointment by a Court of a curator in respect of the person of the adult concerned in so far as the appointment of the curator relates to duties which may be exercised by the mentor.

(3) Before the withdrawal of an appointment under subsection (2), the Master must forward to the mentor concerned, by registered post, a notice –

(a) setting out the reasons for such withdrawal; and

(b) informing such mentor that he or she may, within thirty days of such notice, apply to the Court for an order restraining the Master from withdrawing the appointment.

Cancellation of letter of appointment

67. (1) Where in terms of this Act -

(a) a mentor resigned;

(b) the appointment of a mentor is withdrawn; or

the Master must cancel the letter of appointment issued in respect of such mentor.

(2) In the case of joint mentors reference to “mentor” in subsection (1) must be interpreted as a reference to the joint mentors or to the last remaining joint mentor, as the case may be.

Return of letter of appointment

68. Any person who ceases to be a mentor must forthwith return his or her letter of appointment to the Master.

Discharge

69. (1) Upon the completion, to the satisfaction of the Master, of his or her duties in respect of the care for the personal welfare of the adult with incapacity concerned, a mentor shall be entitled to obtain his or her discharge from the Master.

(2) After three years have elapsed from the date upon which a mentor has been discharged under subsection (1) he or she may, with the written consent of the Master, destroy all documents in his or her possession relating to his or her duties as mentor.

CHAPTER 6

ENDURING POWERS OF ATTORNEY FOR PROPERTY

AND FOR PERSONAL WELFARE

Part 1

Introductory provisions

Enduring power of attorney

70. (1) A power of attorney is an enduring power of attorney if it complies with the formalities set out in section 72.

(2) An enduring power of attorney shall, notwithstanding any law –

(a) continue to have effect; or

(b) come into effect,

as the case may be, if the principal becomes an adult with incapacity as contemplated in section 4.

Scope of enduring power of attorney: property and personal welfare

71. (1) A principal may, in the same or in separate enduring powers of attorney authorise the same agent, or different agents, to make decisions about -

(a) the principal’s property; and

(b) the principal’s personal welfare.

(2) Where different agents have been appointed in relation to a principal’s property and his or her personal welfare, in any conflict arising between the exercise of the powers of such agents, the exercise of the powers in relation to the principal’s personal welfare shall prevail, unless a Court, on the application of either agent, directs otherwise in any particular case.

Part 2

Execution formalities

Formalities required in execution of enduring power of attorney

72. (1) An enduring power of attorney shall be valid only if -

(a) it is in writing;

(b) it is, in accordance with section 73, signed by the principal and witnessed by two independent competent witnesses one of which must be the commissioner of oaths referred to in paragraph (e);

(c) it contains a statement indicating the principal’s intention that the power is to continue to have effect notwithstanding the principal’s subsequent incapacity or shall come into effect on the principal’s incapacity;

(d) it is in the form, or substantially in the form, and contains the explanatory notes provided for in –

(i) Form 1 of the Schedule if it relates to the principal’s property; or

(ii) Form 2 of the Schedule if it relates to the principal’s personal welfare;

(e) (i) a commissioner of oaths, who must be one of the witnesses referred to in paragraph (b), in addition to witnessing the power certifies that he or she is satisfied that at the time the principal grants the power, the principal understands its nature and effect;

(ii) the certificate referred to in subparagraph (i) must be made at the time the power is signed by the principal and must be attached to the power at the time of its execution.

(2) For purposes of this section “independent competent witness” means a person -

(a) of fourteen years or over who at the time he or she witnesses an enduring power of attorney is not incompetent to give evidence in a Court of law; and

(b) who is not –

(i) the agent authorised in the power of attorney or the person signing by direction of the principal in terms of section 73(2); or

(ii) the spouse of such agent or such other person at the time of the execution of the power.

Requirements regarding signing and witnessing

73. (1) Subject to subsection (2), an enduring power of attorney must be signed by the principal and the witnesses referred to in section 72(1)(b) at the bottom of each page and at the end thereof.

(2) If the principal is physically incapable of signing an enduring power of attorney, the power may be signed by some other person in the presence and by the direction of the principal, such other person -

(a) being an adult; and

(b) not being -

(i) the agent authorised in the power or a witness to the power; or

(ii) the spouse of such agent or witness at the time of the execution of the power.

(3) The principal, or the other person signing by direction of the principal in terms of subsection (2), must sign the power or acknowledge his or her signature in the presence of the two witnesses referred to in section 72(1)(b).

(4) The witnesses referred to in section 72(1)(b) must sign the power –

(a) in the presence of the principal and of each other; and

(b) if the power is signed by some other person by the direction of the principal in terms of subsection (2), in the presence also of such other person.

(5) (a) If the power is signed by the principal by making a mark or placing a thumb print or by some other person by the direction of the principal in terms of subsection (2), the commissioner of oaths referred to in section 72(1)(e) must in addition certify at the end of the power that he or she has satisfied him or herself of the identity of the principal and that the power thus signed is the power of the principal.

(b) the certificate referred to in paragraph (a) must be made at the time of execution of the power.

Dispensing of execution formalities

74. The Court may declare that a power of attorney -

(a) signed by the principal; or

(b) signed by some other person in the presence and by the direction of the principal as contemplated in section 73(2),

which does not comply with the other execution formalities set out in section 73, is a valid enduring power of attorney if the Court is satisfied that the persons executing the power intended it to create an enduring power of attorney.

Part 3

Appointment of agent

75. (1) At the date of execution of an enduring power of attorney, an agent appointed under such power must, subject to subsection (2), be -

(a) a mentally competent adult; or

(b) if the power relates to the principal’s property only, either such adult or a juristic person.

(2) If the enduring power relates to the principal’s property only, the agent must, at the date of his or her appointment not be an unrehabilitated insolvent.

(3) A principal may not in an enduring power of attorney authorise an agent to appoint a substitute agent: Provided that the principal may him- or herself in such power appoint a person replacing an agent on the death of the agent or on the occurrence of an event contemplated in section 85(2)(c) or (e).

Part 4

Registration

Registration of enduring power of attorney

76. (1) If it comes to the knowledge of an agent granted authority under an enduring power of attorney that the principal is an adult with incapacity contemplated in section 4 the agent may not continue to act upon the power, or commence acting on it, as the case may be unless -

(a) he or she has filed it for registration -

(i) with the Master within whose jurisdiction the principal is ordinarily resident; or

(ii) in the case of such principal who is not so resident, with the Master appointed in respect of any such area in which the greatest portion of the principal’s property is situated; and

(b) the Master has endorsed the enduring power of attorney to the effect that it has been registered.

(2) An agent who files an enduring power of attorney with the Master for registration must together with it file –

(a) an affidavit by a person named in the power, which person may be the agent appointed under the power; or

(b) a report by a medical practitioner,

dated not more than seven days before the filing of the power, stating that the principal is in the opinion of such person or such medical practitioner an adult with incapacity as contemplated in sec 4 and referring to the facts on which this opinion is based.

(3) If the Master is satisfied that the principal is an adult with incapacity as contemplated in sec 4 he or she must –

(a) register the enduring power of attorney and file the original in his or her office; and

(b) return a copy of the original power, endorsed to the effect that it has been registered in his or her office, to the agent.

Part 5

General powers and duties of agent

Furnishing of security

77. (1) The Master may, before registering and endorsing an enduring power of attorney as contemplated in section 76(3), require the agent to furnish security for the amount determined by the Master, unless the agent has been exempted from furnishing security under the power: Provided that the Master shall require security from an agent only if he or she is satisfied that, in the circumstances of the case, it is necessary to do so.

(2) The Master may, at any time after registration of an enduring power of attorney as contemplated in section 76(3), if in his or her opinion there is sufficient ground to do so -

(a) require an agent to furnish security;

(b) reduce or discharge any security given; or

Notification of address and change of circumstances

78. (1) An agent must when filing an enduring power for registration with the Master in terms of section 76 furnish the Master in writing with an address for the service upon him or her of notices and process.

(2) An agent must, after the registration of an enduring power terms of section 76(3), notify the Master of -

(a) any change in the address supplied to the Master in terms of subsection (1);

(b) the death of the principal who granted the power; and

(3) If, after the registration of an enduring power in terms of section 76 -

(a) the agent dies, his or her executor contemplated in section 1 of the Administration of Estates Act must, if aware of the existence of the power, notify the Master of the death of the agent; or

(b) the agent becomes an adult with incapacity as contemplated in section 4, his or her primary carer must, if aware of the existence of the power, notify the Master of the incapacity of the agent.

(4) Any notification of the Master in terms of subsections (2) and (3) must -

(a) be done within 14 days of the occurrence of the event to be notified or as soon as possible thereafter; and

(b) be in writing and sent by registered post or be delivered by hand for which delivery an acknowledgement of receipt must be obtained.

Keeping of records

79. (1) An agent under an enduring power of attorney relating to property must before or within 30 days after exercising any power or authority under the power –

(a) prepare, and thereafter maintain and update, a list of the property of the principal of which the agent takes control; and

(b) commence to maintain, and thereafter maintain and update, a record of all transactions by which the agent deals with property of the principal.

(2) An agent under an enduring power of attorney relating to personal welfare must commence to maintain, and thereafter maintain and update, a record of the exercise of his or her powers.

Accounting on request

80. An agent must when called upon in writing –

(a) by the Master to do so, account to the Master to his or her satisfaction and in accordance with the Master’s instructions for carrying out the authority conferred upon such agent in terms of the enduring power of attorney; and

(b) by any person -

(i) named in the power; or

(ii) with an interest in the property or personal welfare of the principal,

at reasonable intervals allow such person, at the expense of such person, to inspect and receive or make copies of the power, and of the lists and records that the agent is required to maintain in terms of section 79(1) and (2).

Part 6

Restrictions

General restrictions

81. (1) An enduring power of attorney does not authorise an agent to –

(a) use, or threaten to use, force to secure the doing of an act which the principal resists; or

(b) restrict the principal’s liberty of movement whether or not the principal resists,

except under circumstances where the agent reasonably believes that it is necessary to act to avert a substantial risk of significant harm to such principal.

Restrictions in respect of personal welfare

82. (1) An enduring power of attorney relating to personal welfare may not be exercised unless –

(a) the principal is an adult with incapacity contemplated in section 4; or

(b) the agent reasonably believes that paragraph (a) applies.

(2) No authority granted to an agent under an enduring power of attorney relating to personal welfare –

(a) shall authorise an agent to consent to medical treatment on behalf of the principal concerned other than in accordance with the provisions of the National Health Act; and

(b) extends to refusing consent to the carrying out, or continuation, of life-sustaining treatment.

Part 7

Termination

Revocation by principal

83. Nothing in this Act precludes a principal from revoking an enduring power of attorney granted by him or her at any time when he or she has the capacity to do so.

Resignation by agent

84. (1) An agent who wishes to resign after an enduring power of attorney conferring authority on him or her has been registered in terms of this Act, must in writing give notice of such intention to -

(a) the principal who granted the power;

(b) the principal’s primary carer; and

(2) The resignation becomes effective –

(a) 30 days after receipt by the Master of the notification contemplated in subsection (1); or

(b) in the case of the resignation of a joint agent or a substitute agent, on receipt by the Master of written confirmation that the remaining joint agent or the substitute agent is willing to act under the power.

(3) On receipt of a notice of resignation contemplated in subsection (1) the Master in whose office the enduring power is registered must –

(a) cancel the power; or

(b) where a joint agent or a substitute agent indicated his or her willingness to continue acting or commence to act under the power, endorse the power to this effect.

Withdrawal by Court or Master

85. (1) A Court may at any time, upon application by the Master or any interested person –

(a) withdraw an enduring power of attorney registered in terms of this Act; and

(b) direct the Master to cancel the registration of such power,

if the Court is of opinion that good cause exist for doing so.

(2) A Master may withdraw an enduring power of attorney registered in his or her office in terms of this Act and, subject to subsection (3), cancel the registration thereof –

(a) if the agent –

(i) fails to perform satisfactorily any duty imposed upon him or her by or under this Act; or

(ii) refuses or fails to comply with any lawful request of the Master;

(b) if the agent has been convicted in the Republic or elsewhere of –

(i) any offence of which dishonesty is an element; or

(ii) any other offence for which he or she has been sentenced to imprisonment without the option of a fine;

(i) if the agent’s estate is sequestrated; or

(ii) where a juristic person has been appointed as agent, if such juristic person is wound up or dissolved;

(d) if the agent suffers from any incapacity contemplated in section 4;

(e) on the dissolution of a marriage or permanent same sex life partnership between the principal and the agent, except where the power provides otherwise;

(f) on the appointment, in terms of this Act, by a Master of a manager or a mentor for the principal concerned, in so far as the authority granted by the power may be exercised by such manager or mentor; or

(g) on the appointment by a Court of a curator in respect of the person or property of the principal, in so far as the authority granted by the power may be exercised by such curator.

(3) Where an enduring power of attorney -

(a) grants authority to joint agents; or

(b) provides for substitute agents, the appointment of one being conditional upon the termination of the authority of another,

reference to “agent” in subsection (2) must be interpreted as a reference to the last remaining agent.

Return of copy of enduring power of attorney

86. If, after registration of an enduring power of attorney, the power is cancelled by a Master in terms of this Act –

(a) the Master must notify the agent within 14 days of such cancellation; and

(b) the agent must, on receipt of such notification, without delay return his or her endorsed copy of the power to the Master.

Part 8

Validity of certain documents as enduring powers of attorney

Recognition of foreign documents

87. Notwithstanding section 72, a document is an enduring power of attorney if, according to the law of the place where it was executed -

(a) it is a valid power of attorney; and

(b) the agent’s authority there under is not terminated by the subsequent incapacity of the principal.

CHAPTER 7

SUPPLEMENTARY POWERS OF THE MASTER AND THE COURT

Part 1

Powers and duties of the Master

Notification of appointment and of cessation

88. (1) The Master must whenever he or she signed or issued a letter of appointment in respect of a manager or mentor and whenever any such manager or mentor ceases to be a manager or mentor under this Act, cause a notice to be published –

(a) in the Gazette;

(b) in a newspaper circulating in the district in which the adult with incapacity concerned is ordinarily resident; and

(c) in the case of the appointment of a manager, also in a newspaper circulating in the area or areas in which such adult owns property.

(2) The notice referred to in subsection (1) must -

(a) state that a manager or mentor has been appointed, or has ceased to be manager or mentor, for the adult with incapacity concerned; and

(b) must supply the name and address of such adult and such manager or mentor.

Returns to registration officer of immovable property included in manager’s inventory

89. (1) The Master must within seven days after receipt by him or her of an inventory referred to in section 31 in which immovable property has been included, furnish the officer charged with the registration of such property with a return containing –

(a) the name of the adult concerned;

(b) the name of the manager; and

(2) A registration officer who has been furnished with a return referred to in subsection (1) may not register any transaction in respect of such property entered into by the manager concerned, unless authorised to do so by a Court order or with the consent of the Master.

Powers on failure to lodge accounts or perform duties

90. If any manager, mentor or person acting under a specific intervention order fails -

(a) to lodge any account or report with the Master as and when required by this Act;

(b) to lodge any voucher or vouchers in support of such account or any entry therein as required by this Act;

(c) to perform any other duty imposed upon him or her in accordance with a provision or a requirement imposed under this Act; or

(d) to comply with any reasonable demand of the Master for information or proof required by him or her in connection with the management of the property or the care for the personal welfare of an adult with incapacity under this Act ,

the Master may, after giving the manager, mentor or person acting under a specific intervention order not less than one month’s notice, apply to the Court for an order directing such manger, mentor or person to lodge such account, report, or voucher or to perform such duty or to comply with such demand.

Initiation of appointment of manager or mentor under certain circumstances

91. (1) A Master may –

(a) where -

(i) no application has been made for the renewal of the appointment of a manager or mentor;

(ii) a manager, mentor or agent has resigned; or

(iii) the appointment of a manager, mentor or agent has been withdrawn,

in terms of this Act;

(b) if it comes to his or her knowledge that -

(i) an adult with incapacity is the owner of any property in the Republic which is not under the care and management of a manager; or

(ii) the personal welfare of an adult with incapacity is not taken care of by a mentor; or

obtain the information he or she may deem necessary to determine whether it will be in the best interests of the adult concerned to appoint a manager or mentor or both, for such adult.

(2) If the Master is satisfied that it is in the best interests of the adult concerned to appoint a manager or mentor, or both, for such adult he or she must -

(a) by notice in the Gazette; and

(b) in such manner as in his or her opinion is best calculated to bring it to the attention of the persons concerned,

call upon the relatives of the adult with incapacity concerned and any other person with an interest in the property or personal welfare of such adult to attend before such Master, or if more expedient before any other Master or any magistrate, at a time and place specified in the notice for the purpose of recommending to the Master for appointment as manager or mentor in respect of the adult concerned, a specific person or persons.

(3) If the Master published a notice under subsection (2) and -

(a) received a recommendation contemplated in subsection (2); or

(b) received no such recommendation,

he or she must appoint and issue letters of appointment to such person or persons as the Master considers suitable for appointment, unless it appears to him or her to be necessary or expedient to postpone the appointment and to publish another notice under subsection (2).

(4) The provisions relating to the appointment of –

(a) a manager in sections 24, 25 and 26; or

(b) a mentor in sections 51 and 52,

apply, with the necessary changes, to the appointment under this section of a manager or a mentor, or both, as the case may be.

Investigation and enquiry

92. (1) A Master may, in respect of any appointment, decision, ruling, direction or order to be made by him or her under this Act –

(a) obtain such further information; or

(b) make such enquiry,

as he or she may deem necessary to fulfill his or her functions and powers in terms of this Act.

(2) For purposes of subsection (1), a Master may by notice in writing require any person who may in the opinion of such Master be able to give such information, or assist such enquiry, to appear -

(a) before such Master; or

(b) a Master nominated by such Master,

at a place and time stated in the notice, to be examined under oath or solemn affirmation in connection with such matter.

Interim rulings

93. Without prejudice to any other powers conferred by this Act, the Master may make such interim order or ruling as appears to him or her to be appropriate pending the disposal of an application or any proceedings in terms of this Act.

Review

94. (1) Any person with an interest in the property or personal welfare of an adult with incapacity may apply to a Master to review any action taken or decision made in terms of this Act -–

(a) under a general authority to act;

(b) under an intervention order;

(d) by a mentor; or

(e) by an agent under an enduring power of attorney,

in respect of the property or personal welfare, or both, of an adult with incapacity.

(2) The Master may, if he or she considers it to be reasonable to do so in all the circumstances –

(a) review the act or decision contemplated in subsection (1); and

(b) make a ruling with regard to such act or decision as he or she thinks fit.

Part 2

Access to Court

95. (1) Every appointment by the Master and every decision, ruling, direction or order by the Master under this Act is subject to review by the Court at the instance of any interested person.

(2) A Court hearing a review contemplated in subsection (1) may, without derogating from its inherent powers of review, confirm, set aside or vary such appointment, decision, ruling, direction or order as the case may be.

CHAPTER 8

GENERAL PROVISIONS

Regulations

96. The Minister may make regulations regarding –

(a) any form required to be prescribed in terms of this Act;

(b) any matter required to be prescribed in terms of this Act; and

Offences and penalties

97. (1) Any person who -

(a) contravenes of fails to comply with any prohibition, restriction, limitation, condition, notice, letter of appointment, order, request, instruction, directive, authorisation, duty, obligation, permission or exemption given, issued, granted or imposed in terms of this Act;

(b) in any application, record, inventory, account, report, notification or document submitted in terms of this Act, knowingly makes a misleading, false or deceptive statement, or conceals any material fact, or misrepresents a fact; or

(c) ill-treats or willfully neglects an adult with incapacity in relation to whom he or she has any powers or responsibility by virtue of this Act,

is guilty of an offence.

(2) Any person convicted of an offence in terms of subsection (1) is liable on conviction –

(a) in the case of an offence referred to in paragraph (a) to a fine or to imprisonment for a maximum period of one year or to both such fine and such imprisonment;

(b) in the case of an offence referred to in paragraphs (b) or (c) to a fine or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

Short title and commencement

98. This Act is called the Adults with impaired decision-making capacity Act, 200…, and comes into operation on a date fixed by the President by proclamation in the Gazette.

SCHEDULE

Introduction

This Schedule contains in –

Form 1: A model form for an enduring power of attorney relating to property referred to in section 72(1)(d)(i) of this Act.

Form 2: A model form for an enduring power of attorney relating to personal welfare referred to in section 72(1)(d)(ii) of this Act.

Purpose of this Schedule

The forms provided for are model forms for granting enduring powers of attorney relating to property and to personal welfare, respectively. The model forms contain all the prescribed elements for legally valid enduring powers of attorney for property and for personal welfare as required by this Act. The forms are intended to increase accessibility of the use, and reduce the possible misuse and abuse of enduring powers of attorney by providing clear guidelines as to its contents.

Although use of the model forms is not obligatory, this Act in section 72(1)(d) requires that every enduring power of attorney must be substantially in the form provided for in this Schedule. This means that every enduring power of attorney must at least contain all the elements provided for in the model forms.

The model forms include the explanatory notes that must in terms of section 72(1)(d) of this Act be included in every enduring power of attorney for it to be valid. The notes contain a simplified explanation of the most important aspects of an enduring power of attorney as provided for in the Act and is not intended to derogate from or add to the contents of the Act.

FORM 1

MODEL FORM FOR ENDURING POWER OF ATTORNEY RELATING TO PROPERTY

THIS POWER OF ATTORNEY is made in terms of the Adults with Impaired Decision-making Capacity Act, 200…, this ... day of ……… 200….

By: ………………………………………………………….………………………….

Of: ……………………………………………………………………………………..

Born on: …………………………………………………………………………………...

(Full name, address and date of birth of principal)

1. EXPLANATORY NOTES FOR THE ASSISTANCE OF THE PRINCIPAL

READ THESE NOTES BEFORE SIGNING THIS DOCUMENT

Definitions

Adult: means a person –

(a) who has attained the age of majority in terms of section 1 of the Age of Majority Act, 1972 (Act No. 57 of 1972) or who has been declared to be a major in terms of section 2 of that Act; or

(b) who has contracted a legal marriage.

Agent: means a person who is authorised to act for a principal under an enduring power of attorney granted in terms of the Act.

Principal: means a person who grants an enduring power of attorney in terms of the Act.

Property: includes income, finance, business or undertaking and any contingent interest in property.

Personal

welfare: means any matter relating to the person of an adult with incapacity not relating to “property” and includes health care.

The Act: means the Adults with Impaired Decision-making Capacity Act, 200.. (Act No. … of 200..).

What is an enduring power of attorney?

Adults make decisions about their lives everyday. These decisions deal with their property (such as whether to buy a car), or their personal welfare (such as where to live). It is however possible that, at some stage in their lives, they may not be able to make these decisions on their own because of illness, injury or disability.

An enduring power of attorney is a legal document that enables one to plan in advance for a stage when you might become mentally incapable of taking your own decisions regarding your property and / or your personal welfare. It enables another person, referred to as your agent, to make these decisions on your behalf.

Note that if you wish to grant powers of attorney in respect of both your property and your personal welfare, you must do this in separate documents.

What types of decisions can be covered by an enduring power of attorney for property?

You can include almost any kind of decision-making authority relating to your property in this enduring power of attorney.

Who can make an enduring power of attorney for property?

A person who wishes to make an enduring power of attorney for property –

* must be an adult; and

* must be able to understand the nature and effect of an enduring power of attorney. This means that he or she must understand what an enduring power of attorney is and what, in a general sense, it could be used for.

Must an enduring power of attorney comply with specific execution formalities to be valid?

Yes. In order for an enduring power of attorney to be legally valid it must comply with the formalities regarding content, signing of the power and witnessing of the power as set out in Chapter 6 of the Act.

Note that a principal may sign an enduring power of attorney by making a mark or placing a thumb print on the power. Or, if the principal is physically incapable of signing the power, it may be signed by some other person in the presence and by the direction of the principal. The Act contains express requirements in this regard.

Note also that a Commissioner of Oaths must certify that he or she is satisfied that at the time the principal grants an enduring power the principal understands its nature and effect. This certificate must be attached to the power.

Who should I choose to be my agent?

You should choose a person who is -

* an adult;

* someone you trust; and

* willing to act as your agent.

You may choose more than one person to act as your agent. If you do this, you should clearly indicate it in the enduring power of attorney.

Discuss your choice of agent/s with the important people in your life if possible.

Should my agent know about this enduring power of attorney?

Yes. You must discuss your decision to appoint a person as your agent with that person before making your enduring power of attorney.

What are the consequences of giving this enduring power of attorney?

The effect of giving this enduring power of attorney is to authorise the person you have named as your agent to make decisions and to act on your behalf with respect to your property. This could include your bank accounts, pensions, investments and anything of a financial nature.

How wide are the powers that my agent has in respect of my affairs?

Unless you state otherwise in this document, your agent will have very wide powers to deal with affairs relating to your property.

When does an enduring power of attorney take effect?

Generally speaking, an enduring power of attorney comes into effect either –

(1) as soon as it is executed - i e while you are still mentally capable of making your own decisions; or

(2) at some future date when you become mentally incapable, but only if you clearly stipulate in the document that the power should not come into effect until such future event.

However, in the case of both (1) and (2) your agent may not act on your behalf when you are mentally incapacitated unless the power has been registered with the Master of the High Court. This is explained in the next paragraph.

When can my agent start acting on my behalf under this power of attorney?

In the case of (1) in the previous paragraph, the power will take effect as soon as it is signed and witnessed and your agent may immediately start acting on your behalf. The power will continue to have effect during your lifetime and it will not come to an end if you become mentally incapacitated in the future, unless you have revoked it before that time. If you become mentally incapacitated your agent must register the power with the Master of the High Court in order to be able to continue to legally act on your behalf. After registration he or she will have a duty to manage your affairs while you are mentally incapacitated and will not be able to resign without first notifying the Master of the High Court.

In the case of (2), you should ensure that the event of your mental incapacity can be clearly ascertained. For this purpose, you can name a person in your enduring power who must declare that you have become mentally incapacitated. If you do not name any person, or if the named person is unable or unwilling to declare that the event has taken place, then a medical practitioner may declare that you are mentally incapacitated. At the point of such declaration, your agent can register this power with the Master of the High Court and he or she would then have legal authority to manage your affairs.

Can I amend or revoke this enduring power of attorney?

You can amend or revoke this power at any time if you are still mentally capable of understanding the nature and effect of the document.

What happens if my agent does not handle my affairs properly?

If your agent does not handle your affairs properly, you may revoke your power of attorney if you are still mentally capable of doing so.

If you are not capable, then any interested person may request the Master of the High Court to investigate, or may apply to the High Court to withdraw the power granted to your agent.

What should I do with my enduring power of attorney?

If you have made an enduring power of attorney that will come into operation upon signing thereof, you should give the original to your agent and keep a copy for yourself.

If you have made a power of attorney that will come into effect on your mental incapacity (i e on a later date), you should give the original to your agent for safe keeping and keep a copy for yourself.

Where can I seek further advice?

These notes are a simplified explanation of the most important aspects of an enduring power of attorney as provided for in the Act. If you need more information you can seek advice from –

* a legal practitioner; or

* the Master of the High Court.

2. *CANCELLATION OF PREVIOUS POWERS OF ATTORNEY

I revoke the power of attorney previously given by me

on …………………………………………………………………………………………………...

(date of power of attorney now being revoked)

appointing …………………………….. …………………………………………………………...

(name of agent appointed in the power of attorney now being revoked).

3. APPOINTMENT OF AGENT

(a) I hereby appoint:

………………………………………………………………………………………………

(full name, address, and occupation of agent)

to be my agent for the purpose of Chapter 6 of the Adults with Impaired Decision-making Capacity Act, 200... (Act No. … of 200…).

(b) In addition to the person I appointed as my agent under paragraph (a), I appoint the following person/s to act –

* jointly

* jointly and severally

with that person as my agent.

4. POWERS GRANTED TO AGENT

The appointment in paragraph 3 -

(a) is -

* a general authority to act on my behalf

* authority to act on my behalf in the following respects only:

…………………………………………………………………………………………………………………………………………………………………………

in relation to –

* the whole of my property

* the following property only:

……………………………………………………………………………………

…………………………………………………………………………………….

(b) is subject to the following conditions and restrictions:

………………………………………………………………………………………………………………………………………………………………………….

5. STATEMENT OF INTENT REGARDING OPERATION OF POWER

* I intend that the authority granted in paragraph 3 of this power shall not cease if I become mentally incapacitated.

* I intend that the authority granted in paragraph 3 of this power shall have effect only if I become mentally incapacitated.

6. *PAYMENT OF AGENT

I authorise my agent to take annual compensation from my property in the amount of:

………………………………………………………………………………………………………..

SIGNED BY: ………………………………………………………………………………………

(Signature of principal)

IN THE PRESENCE OF:

………………………………………………………………………………………………………

(Full name and signature of witness 1)

………………………………………………………………………………………………….

(Full name and signature of witness 2)

*Delete where not applicable

CERTIFICATE OF EXECUTION

required in terms of

section 72(1)(e) of the Adults with Decision-making Incapacity Act, 200…

I, …………………………………… ………………………………………………………………

(Full name)

of ……………………………………………………………………………………………………

in my capacity as commissioner of oaths certify that I have satisfied myself that at the time the principal named in this enduring power of attorney grants this power, the principal understands the nature and effect of this enduring power of attorney.

………………………………………………………………………………………………………

(Signature of Commissioner of Oaths)

………………………………………………………………………………………………………

(Capacity)

………………………………………………………………………………………………………

(Date)

FORM 2

MODEL FORM FOR ENDURING POWER OF ATTORNEY RELATING TO PERSONAL WELFARE

THIS POWER OF ATTORNEY is made in terms of the Adults with Impaired Decision-making Capacity Act, 200…, this ... day of ……… 200….

By: ………………………………………………………….………………………….

Of: ……………………………………………………………………………………..

Born on: …………………………………………………………………………………...

(Full name, address and date of birth of principal)

1. EXPLANATORY NOTES FOR THE ASSISTANCE OF THE PRINCIPAL

READ THESE NOTES BEFORE SIGNING THIS DOCUMENT

Definitions

Adult: means a person –

(a) who has attained the age of majority in terms of section 1 of the Age of Majority Act, 1972 (Act No. 57 of 1972) or who has been declared to be a major in terms of section 2 of that Act; or

(b) who has contracted a legal marriage.

Agent: means a person who is authorised to act for a principal under an enduring power of attorney granted in terms of the Act.

Principal: means a person who grants an enduring power of attorney in terms of the Act.

Property: includes income, finance, business or undertaking and any contingent interest in property.

Personal

welfare: means any matter relating to the person of an adult with incapacity not relating to “property” and includes health care.

The Act: means the Adults with Impaired Decision-making Capacity Act, 200.. (Act No. … of 200..).

What is an enduring power of attorney?

Note that if you wish to grant powers of attorney in respect of both your property and your personal welfare, you must do this in separate documents.

What types of decisions can be covered by an enduring power of attorney for personal welfare?

You can include almost any kind of decision-making authority relating to your personal welfare (including decision-making relating to your medical treatment) in this enduring power of attorney.

However, the law prohibits an individual to take decisions on certain very personal matters on behalf of someone else. These include decisions relating to matters such as marriage, divorce, adoption of a child, or making a will. In addition to this, the Act places restrictions on certain decisions relating to medical treatment being taken on behalf of a principal by an agent. The latter in particular includes decisions relating to refusing consent to the carrying out, or continuation, of life-sustaining treatment.

Who can make an enduring power of attorney for personal welfare?

A person who wishes to make an enduring power of attorney for personal welfare –

* must be an adult;

Must an enduring power of attorney comply with specific execution formalities to be valid?

Note that a principal may sign an enduring power of attorney by making a mark or by placing a thumb print on the power. Or, if the principal is physically incapable of signing the power, it may be signed by some other person in the presence and by the direction of the principal. The Act contains express requirements in this regard.

Who should I choose to be my agent?

You should choose a person who is -

* an adult;

* someone you trust; and

* willing to act as your agent.

You may choose more than one person to act as your agent. If you do this, you should clearly indicate it in the enduring power of attorney.

Discuss your choice of agent/s with the important people in your life if possible.

Should my agent know about this enduring power of attorney?

Yes. You must discuss your decision to appoint a person as your agent with that person before making your enduring power of attorney.

What are the consequences of giving this enduring power of attorney?

The effect of giving this enduring power of attorney is to authorise the person you have named as your agent to make decisions and to act on your behalf with respect to your personal welfare. This could include taking decisions on where you should live, whether and what medical treatment you should receive, or anything relating to your personal welfare.

How wide are the powers that my agent has in respect of my affairs?

Unless you state otherwise in this document, your agent will have very wide powers to deal with affairs relating to your personal welfare.

When does an enduring power of attorney take effect?

Generally speaking, an enduring power of attorney comes into effect either –

(1) as soon as it is executed - i e while you are still mentally capable of making your own decisions; or

(2) at some future date when you become mentally incapable, but only if you clearly stipulate in the document that the power should not come into effect until such future event.

When can my agent start acting on my behalf under this power of attorney?

Note that in the case of an enduring power relating to personal welfare your agent may however only act on your behalf once you have become mentally incapable of acting yourself. This differs from the position regarding an enduring power relating to property where an agent may act on behalf of a principal irrespective of whether such principal is mentally incapacitated or not.

Can I amend or revoke this enduring power of attorney?

You can amend or revoke this power at any time if you are still mentally capable of understanding the nature and effect of the document.

What happens if my agent does not handle my affairs properly?

If your agent does not handle your affairs properly, you may revoke your power of attorney if you are still mentally capable of doing so.

If you are not capable, then any interested person may request the Master of the High Court to investigate, or may apply to the High Court to withdraw the power granted to your agent.

What should I do with my enduring power of attorney?

If you have made an enduring power of attorney that will come into operation upon signing thereof, you should give the original to your agent and keep a copy for yourself.

Where can I seek further advice?

These notes are a simplified explanation of the most important aspects of an enduring power of attorney as provided for in the Act. If you need more information you can seek advice from –

* a legal practitioner; or

* the Master of the High Court.

2. *CANCELLATION OF PREVIOUS POWERS OF ATTORNEY

I revoke the power of attorney previously given by me

on …………………………………………………………………………………………………...

(date of power of attorney now being revoked)

appointing …………………………….. …………………………………………………………...

(name of agent appointed in the power of attorney now being revoked).

3. APPOINTMENT OF AGENT

(a) I hereby appoint:

………………………………………………………………………………………………

(full name, address, and occupation of agent)

to be my agent for the purpose of Chapter 6 of the Adults with Impaired Decision-making Capacity Act, 200... (Act No. … of 200…).

(b) In addition to the person I appointed as my agent under paragraph (a), I appoint the following person/s to act –

* jointly

* jointly and severally

with that person as my agent.

4. POWERS GRANTED TO AGENT

The appointment in paragraph 3 -

(a) is in relation to -

* my personal welfare generally

* the following specific matters relating to my personal welfare only:

…………………………………………………………………………………………………………………………………………………………………………

(b) * is subject to the following conditions and restrictions:

…………………………………………………………………………………….…………………………………………………………………………………….

5. STATEMENT OF INTENT REGARDING OPERATION OF POWER

I intend that the authority granted in paragraph 3 of this power shall have effect only if I become mentally incapacitated.

6. *PAYMENT OF AGENT

I authorise my agent to take annual compensation from my property in the amount of:

………………………………………………………………………………………………………..

SIGNED BY: ………………………………………………………………………………………

(Signature of principal)

IN THE PRESENCE OF:

………………………………………………………………………………………………………

(Full name and signature of witness 1)

………………………………………………………………………………………………….

(Full name and signature of witness 2)

*Delete where not applicable

CERTIFICATE OF EXECUTION

required in terms of

section 72(1)(e) of the Adults with Decision-making Incapacity Act, 200…

I, …………………………………… ………………………………………………………………

(Full name)

of ……………………………………………………………………………………………………

………………………………………………………………………………………………………

(Signature of Commissioner of Oaths)

………………………………………………………………………………………………………

(Capacity)

………………………………………………………………………………………………………

(Date)

The South African Medico Legal Society

Adults with Impaired Decision-making Capacity

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