Havenga, Anna-Marie --- "Decision-Making by and for People With a Decision-Making Disability: Law Reform Currently Underway in South Africa" [2002] ALRCRefJl 23; (2002) 81 Australian Law Reform Commission Reform Journal 47

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Reform Issue 81 Spring 2002

This article appeared on pages 47 – 52 & 90 of the original journal.

Decision-making by and for people with a decision-making disability

Law reform currently underway in South Africa

By Anna-Marie Havenga*

We take it for granted that adults can make decisions about their personal welfare, financial affairs and medical treatment. Some adults however cannot make such decisions. They may have diminished capacity as a result of mental illness, head injury, stroke, learning disability, a specific disease, or inability to communicate because of a physical or other disability. Since incapacitation can result from unexpected acute illness or injury as well as long-term degenerative conditions, every competent individual is to some degree vulnerable to the possibility of becoming incapable. The probability of incapacitation, however, increases with age – while actual life expectancy has increased, the expectancy of life without disability has not. Furthermore, current medical science holds out little hope that the chronic, non-lethal degenerative diseases of old age can be significantly prevented or delayed.

The Law Commission investigation

The South African Law Commission has been involved in an investigation of the need for law reform with regard to decision-making ability of incapable adults since 2001.The investigation was undertaken as a result of attention being drawn to the declining decision-making ability of persons with Alzheimer’s disease in particular, and the outdated and inappropriate ways in which the South African law currently deals with this situation. The Commission’s work however has a broader focus: it attempts to deal with the shared problems faced by persons with diminished decision-making abilities, however this was caused.

As a first step an Issue Paper¹ was published in December last year for public comment. The purpose was to introduce the investigation to the public, to initiate debate and to define the extent of the reform necessary. The second step is the publication of a Discussion Paper (the preparation of which is currently receiving attention) containing research results, preliminary recommendations and draft legislation. The Discussion Paper will take the public response to the Issue Paper into account and will test public opinion on solutions identified by the Commission. Finally, on the strength of comments on the Discussion Paper, a Report will be prepared. An expert project committee has been appointed to assist with the investigation.

Investigating the issue is in line with the increase in the number of persons suffering from diminished capacity. The aged population (ie, the elderly over pensionable age) in South Africa currently consists of about 7% of the total population.² Many of these persons will gradually lose their ability to administer their assets and to care for themselves. The number of persons with dementia is also increasing. Although little is known about the specific prevalence of dementia in South Africa, it is expected that it would increase because of the ageing of the population in accordance with worldwide trends.³ Moreover, in 1996, 6% of the South African population was classified as disabled. Included were persons suffering from disabilities relating to sight and hearing as well as mental disabilities.⁴

The investigation is also in line with law reform in other countries. In several legal systems enduring powers of attorney (a power of attorney that remains in force despite the fact that the principal has become mentally incapacitated) were introduced in the 1980s and more recently comprehensive legislative schemes to deal with the problems faced by incapable adults, their families and caregivers have been established through law reform. The latter include reform in England, Australia, Canada and most notably and recently in Scotland. In some of these countries completely new systems comprising substitute ‘decision-makers’ have replaced old and intrusive systems that required the appointment of public officials where it was unnecessary.⁵

The investigation moreover follows an attempt by the Commission to have the concept of enduring powers of attorney introduced in the South African legal system as far back as 1988.⁶ In contradistinction to developments in comparable legal systems at the time, the South African government did not promote the Law Commission’s recommendations in this regard.

The current legal position

Any mental incapacity that affects a person’s intellect and judgement will, in terms of South African private law, affect his or her capacity to act in the legal sense and to litigate. These capacities depend on whether the person in question is capable of managing his or her affairs. A person’s capacity to act is determined by common law principles as extended by the courts and is currently not regulated by legislation.⁷

Curatorship system

At present the legal solution to the problem of persons who cannot manage their own affairs takes the form of curatorships: a curator can be appointed by the High Court to an individual’s person (curator personae) or property (curator bonis).

A curator personae is usually appointed where, because of advanced age, or mental or physical incapacity, a person is found to be incapable of managing his or her personal and health affairs, and can be appointed either generally or for specific purposes. A curator personae will typically have to make decisions regarding where the incapacitated person should live; whether he or she should be admitted to an institution or be cared for at home; and whether he or she should undergo medical treatment or an operation and by whom it should be performed. There are limits to the scope of a curator personae’s functions: some acts are of too personal a nature to be performed by a legal representative (eg, contracting a marriage, seeking a divorce, exercising parental power and making testamentary dispositions on behalf of the person under curatorship).

A curator bonis can be appointed to take care of an incapacitated person’s property and supplement the person’s lack of capacity to contract. A curator bonis is typically appointed when an individual is found to be incapable of managing his or her financial or property affairs. A curator bonis must defer to the incapable individual should the latter’s legal capacity revive during a lucid interval.

A substantial degree of evidence is required before appointing a curator.⁸ The South African courts are moreover reluctant to appoint curators personae, because these appointments constitute such a serious inroad into rights and liberties and drastically diminish the legal status of the persons concerned.⁹

Power of attorney

Under current law it is also possible for an individual to allow another to act on his or her behalf, for certain purposes or generally, through a power of attorney. However, for a power of attorney to be valid, the person granting the power must have contractual capacity. A change of status will thus terminate the agency. As a general rule no specific formalities are required for powers of attorney – there are, however, formal requirements when powers of attorney are used for certain purposes (eg, the purchase of land).¹⁰

Statutory measures

The only statutory measures currently dealing with persons incapable of managing their affairs are contained in the Mental Health Act 18 of 1973. These measures correspond with the common law position in that they authorise the appointment of a curator bonis and curator personae under certain circumstances.¹¹ The Act was amended in 1990 to provide for less complicated and expensive procedures for the appointment of a curator bonis. These measures are, however, applicable only to persons who cannot manage their affairs because of ‘mental illness’ and in respect of indigenous cases.¹² The Act’s definition of ‘mental illness’ is wide but it is accepted that it does not cover persons suffering from incapacity related to organic diseases.¹³ The Act also makes no provision for persons incapable of managing their affairs because of a physical disability or due to illiteracy – in both instances persons who might benefit from a less expensive procedure. The Mental Health Act is currently in the process of being updated and replaced. The envisaged new Act does not, however, address these needs.¹⁴

The need for reform

Although much research and debate are still needed, responses to the Commission’s first round of public consultation in principle confirm the need for a change of the law. There is a range of problems with the current system.

The existing curatorship system is perceived to suffer from a number of serious and frustrating difficulties.

Some of the main problems experienced include the following:

• The appointment of a curator in almost all instances involves a High Court application, which can be expensive and prolonged.

• The paternalistic nature of the current system deters many from utilising it. The incapacitated person invariably has very little say in the choice of curator since, at the stage of such appointment, the person may have reached such a state of incapacity that he or she is likely not to be considered capable of expressing an informed view as to the choice of curator.

• Although there are many safeguards and controls of the curator’s functions through the Master’s Office and the Court,¹⁵ there remains, as with any fiduciary relationship, the potential for abuse, neglect or maladministration.

• The current system is largely unknown and therefore inaccessible. It is moreover perceived to be a suspect system – curators are seen by many as strangers who have no personal interest in the well-being of persons with incapacity.

The problem of a power of attorney ceasing on incapacity is a major cause for concern.

Frequently caregivers are under the impression that the power of attorney signed by a person in their care will be effective until that person dies. They continue to act as an agent for the incapacitated person. This is an unsatisfactory position: caregivers acting in good faith are putting themselves at risk of performing unauthorised acts for which they could be held personally liable. Even if such caregivers are aware of the legal position, it can be very difficult to determine whether or not they may continue to act as loss of mental capacity by the person in their care may be gradual or erratic.

The present state of affairs is complicated by the fact that South Africa has no specific statutory provisions dealing with incapable adults.

The law is to be found mainly in a combination of the Constitution, the common law as extended by the courts, mental health legislation, legislation pertaining to the administration of estates, and the rules of the High Court. In many cases incapacitated persons are cared for by persons who are ignorant of the law and who appear to be unaware that their acts, done in kindness and good faith, may have serious legal implications.

Possible approaches to reform

New measures are definitely required. It is, however, debatable whether they should just supplement or completely replace existing measures. Although a change to the law could bring relief to adults with incapacity, their families and carers, there could be problems which the law will not be able to solve as law reform is inevitably influenced by broad social policy issues, professional practice, and the availability of resources. In this context the approach to reform could be one of ad hoc amendments or additions to provide for the most pressing needs, or it could be more comprehensive resulting in an entirely new system.

Comments currently assimilated by the Commission reflect a difference of opinion on the extent of the reform needed. On the one hand, there are those (mostly representing the views and interests of persons with incapacity, their family and carers) who support a comprehensive review of the current position. They would like to see reform culminating in a completely new system of substitute decision-making, catering for various and specific needs. On the other hand, there are those (mostly representative of the legal fraternity) who are in favour of upgrading the current curatorship system and supplementing it by confirming the Commission’s 1988 recommendation for the concept of an enduring power of attorney to be introduced into our law. The proper approach to follow will become more evident as we proceed with the investigation.

Options for reform

What would be suitable options to replace or supplement the current position? Comments on the Commission’s Issue Paper reflect differences of opinion on this issue also, and again it would be too early to point to specific solutions. There seems to be consensus that the very least that is required is a streamlining of the current curatorship system to make it more user-friendly, more accessible, and placing it within the financial reach of a broader spectrum of people; and coupling it with the introduction of the concept of enduring power of attorney, which has been long overdue in our law. This option would, however, be in accordance with a law reform approach addressing the most pressing needs only. The majority of respondents on the Commission’s Issue Paper seem to believe that the latter approach would not suffice. They believe that a combination of measures is called for to address the variety of circumstances arising from the current unsatisfactory state of affairs. These could include providing for future incapacity by applying the concept of advance directive more generally; introducing the concept of enduring power of attorney and also extending it beyond the scope of financial and property administration to personal care and welfare; providing for designated decision-making procedures; and providing for decision-making by a single forum.

What has, however, been established firmly through public comment at this stage is that, whatever solution is developed, it will have to accommodate the following principal needs:

• Any change to the law should provide legal certainty regarding management of the affairs of incapable persons.

• Clear principles and values should underpin intervention in the affairs of persons with incapacity. The view has been expressed that only the substituted judgement approach (which prefers the decision which the incapacitated person would have made, had he or she been competent to do so) is constitutionally acceptable as it would fit in with the underlying premise of the Bill of Rights that persons – including the disabled – are autonomous and assertive bearers of constitutional rights.¹⁶

• The law should recognise and provide for progressive, temporary and fluctuating loss of capacity. Provision should thus be made for a more flexible system than that presently in place. This should be done by limiting formal arrangements (requiring court applications) to aspects that cannot be met by informal arrangements.

• South Africa’s move towards a human rights approach as well as the complexity of our society will have to be reflected in the solutions developed. The former would call for measures which would clearly preserve the autonomy and dignity of persons with incapacity. The latter would imply, amongst others, that cultures and values of African people should be recognised: the important role of family should for instance be acknowledged by the law, even where family members are illiterate or cannot communicate except in the vernacular.

• Provision should be made for an affordable system that would be accessible to the majority of persons in South Africa who live in poverty-stricken communities and don’t have the funds to utilise sophisticated legal options.

• Better control and safeguards should be implemented to protect the interests of adults with incapacity against abuse. This could include the appointment of a general watchdog or ombudsman to monitor those given authority to make decisions on behalf of others and to act on complaints.

• Foundational legislation should be supplemented by public awareness campaigns, education, guidelines and codes of good conduct to provide yardsticks for family, caregivers and health care providers and to protect the interests of adults with incapacity.

Conclusion

In the context of the law reform process there is a long road ahead. It is clear that there are no easy solutions to many of the worries and concerns faced by adults with incapacity, their carers and families.

In different legal systems law reform is informed by different needs and different circumstances. It would, however, be peculiar if there were nothing to be learned from the experience in other countries. A pivotal guideline that emerged from reform elsewhere suggests that people who lack capacity, no matter where they are in the world, share a need for a modern and flexible legal framework that acknowledges their right to have a say in their own life and for a framework that provides protection when they need it.¹⁷ This will be taken cognisance of in the reform currently underway in South Africa.

* Anna-Marie Havenga is a Researcher with the South African Law Commission.

This article is based on the South African Law Commission’s Issue Paper 18 Incapable Adults, and on a presentation made by the author at the XIIth Alzheimer Europe Conference held in Maastricht, the Netherlands, in June 2002.

Endnotes

1. South African Law Commission, Issue Paper 18, Incapable Adults, (2001) Pretoria. The Paper is available on the internet at http://www.law.wits.ac.za/salc/salc.html.

2. Mothers and Fathers of the Nation: The Forgotten People?, (2001) Report of the Ministerial Committee on Abuse, Neglect and Ill-Treatment of Older Persons, Department of Social Development, Pretoria.

3. The Demography of Ageing around the World, Fact Sheet 4, Alzheimer’s Disease International, March 1999.

4. Census in Brief 2000 (Based on Statistics South Africa, The People of South Africa – Population Census 1996, Report 03-01-11 [1996]), 33.

5. Cf, eg, The Law Commission, Consultation Paper No 119, Mentally Incapacitated Adults and Decision-Making: An Overview, (1991) HMSO, London; The Law Commission, Consultation Paper No 128, Mentally Incapacitated Adults and Decision-Making – A New Jurisdiction, (1992) HMSO, London; Scottish Law Commission, Report on Incapable Adults, (1995) HMSO, Edinburgh; Queensland Law Reform Commission, Report No 49, Assisted and Substituted Decisions, (1996) The Print People, Brisbane.

6. South African Law Commission, Enduring Powers of Attorney and the Appointment of Curators to Mentally Incapacitated Persons, (1988) Pretoria.

7. For the general legal position see B van Heerden et al, Boberg’s Law of Persons and the Family, (second edition) (1999) Juta & Co, Kenwyn, 105-135; DSP Cronjé and J Heaton, The South African Law of Persons,(1999) Butterworths, Durban, 33-35, 113-121.

8. Rule 57 of the Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court (Government Notice R48 of 12 January 1965).

9. Mitchell v Mitchell [1930] AD 217.

10. JC de Wet, ‘Agency and Representation’ in The Law of South Africa (LAWSA) Vol 1, (first reissue) (1993) Butterworths, Durban, para 112-116 and 121-122.

11. S 19, 56, 56A, 58 and in particular s 60.

12. The amendment (effected by the Mentally Ill Persons Legal Interests Amendment Act 108 of 1990 and presently contained in s 56A of the Mental Health Act) established an inexpensive procedure for the appointment of a curator of property. This procedure can however be utilised only where the incapacitated person’s estate does not exceed a value of R100 000 or an income of R24 000 per year.

13. ‘Mental illness’ is defined in the Act as ‘any disorder or disability of the mind, and includes any mental disease and any arrested or incomplete development of the mind ...’ (s 1). On the Act’s possible applicability to dementia see South African Law Commission, Enduring Powers of Attorney and the Appointment of Curators to Mentally Incapacitated Persons, (1988) Pretoria, 13, 22 and 24.

14. See Chapter VIII of the Mental Health Care Bill, 2001 (B69D-2001 available at www.polity.org.za/

govdocs/bills/index.html) dealing with the care and administration of property of mentally ill persons or persons with severe or profound intellectual disability; and the definitions of ‘mental illness’ and ‘severe or profound intellectual disability’ in s 1 of the Bill.

15. Cf Chapter IV of the Administration of Estates Act 66 of 1965 for provisions relating to the functions of curators.

16. Cf Alfred Cockrell Bill of Rights Compendium, (1996) Butterworths, Durban, para 3E34.

17. See eg Scottish Executive, Making the Right Moves – Rights and Protection for Adults with Incapacity (1999) The Stationery Office, Edinburgh, 3, 5. See also more generally the sources referred to in n 5.