When a loved one becomes Mentally Incapacitated

APPOINTMENT OF AN ADMINISTRATOR IN SOUTH AFRICA

A practical guide for families when a loved one can no longer manage their affairs

When a person suffers a stroke, develops dementia, or experiences another condition that affects their mental capacity, families are often left in a difficult position. Bank accounts cannot be accessed. Policies cannot be managed. Property cannot be sold. Debit orders continue while no one has legal authority to intervene.

South African law provides a mechanism to deal with this situation. Instead of approaching the High Court to appoint a curator, it is often possible to apply to the Master of the High Court for the appointment of an administrator in terms of the Mental Health Care Act.

This article explains, in practical terms, how the process works and what is required.

What is an administrator?

An administrator is a person appointed by the Master of the High Court to manage the property and financial affairs of a living adult who is incapable of managing those affairs due to mental illness or brain injury.

The appointment relates to financial and property matters. It does not automatically give authority to make personal welfare or medical decisions.

When is this process appropriate?

This route is appropriate where:

• The person is alive.

• The person cannot manage financial affairs because of mental incapacity.

• There is a need for lawful authority to deal with bank accounts, income, assets, or debts.

If the estate is large and complex, involves commercial entities, or there is serious family conflict, a High Court curator application may be more appropriate. Each case must be assessed on its facts.

Step 1: Obtain proper medical evidence

The foundation of the application is medical proof.

The law requires that all available mental health related medical certificates or reports relevant to the person’s mental status and inability to manage property be attached to the application.

In practice, the medical report should:

• Confirm the diagnosis.

• Explain the extent of cognitive impairment.

• Clearly state that the person is unable to manage financial affairs.

The report must be recent and signed by a registered medical practitioner. Without proper medical evidence, the Master will refuse the application.

Step 2: Complete the prescribed application form

The application is made to the Master of the High Court in the area where the person resides.

The prescribed form must be completed in full and signed under oath before a Commissioner of Oaths. It is not valid unless properly commissioned.

The form requires the following information:

Details of the person concerned

Full names, identity number, date of birth, marital status and residential address must be provided accurately.

Details of the applicant

The applicant must provide full personal details and explain the relationship to the person concerned. If the applicant is not the spouse or next of kin, the application must explain why those persons are not bringing the application or what steps were taken to locate them.

Grounds for incapacity

A factual explanation must be provided setting out the medical condition and why the person cannot manage financial affairs.

Estate and income

The application must state the estimated value of the person’s property and annual income. This includes immovable property, bank accounts, investments, pensions, vehicles, business interests and debts.

Full and honest disclosure is essential.

Proposed administrator

The person proposed to act as administrator must consent to the appointment. The Master will consider whether the proposed person is suitable and may require security to be lodged.

Step 3: Notice requirements

The application must confirm that the applicant has seen the person within seven days prior to submitting the application.

A copy of the completed application must be given to or served on the person concerned, and proof of this must be attached.

Failure to comply with these notice requirements is a common reason for rejection.

Step 4: Signing under oath

The application must be signed under oath or solemn affirmation before a Commissioner of Oaths. This can be done at a police station or before an attorney.

This is a sworn statement. Providing false information is a criminal offence.

Step 5: Lodging the application

The completed application and supporting documents must be lodged with the Master of the High Court having jurisdiction over the person’s place of residence.

Copies of all documents should be retained.

After submission, the Master may:

• Request further information.

• Require additional medical reports.

• Conduct an investigation.

• Require security to be lodged by the proposed administrator.

In terms of the Act, security is generally required before letters of appointment are issued, unless the Master reduces or dispenses with it on good cause shown.

No person may act as administrator until formal letters of appointment have been issued.

What happens after appointment?

Once appointed, the administrator must act strictly in the best interests of the person concerned. The Master supervises the administration.

The administrator may only exercise the powers granted in the notice of appointment. Misuse of funds can result in removal and personal liability.

Common mistakes that delay applications

Applications are frequently delayed or refused because of:

• Incomplete medical reports.

• Failure to disclose all assets.

• Incorrect identity numbers.

• Failure to explain why next of kin are not applying.

• No proof that the person concerned received a copy.

• Improper commissioning of the affidavit.

Careful preparation avoids unnecessary delay.

Final remarks

The appointment of an administrator is a practical and cost effective mechanism to assist families when a loved one can no longer manage financial affairs. It avoids the expense and complexity of High Court curator proceedings in appropriate cases.

However, the process is formal and the information provided must be accurate, complete and truthful.

If you are uncertain whether this procedure is suitable in your circumstances, or if the estate is substantial or disputed, professional advice should be obtained before proceeding.

If you require assistance with preparing or reviewing an application for appointment of an administrator, our offices are available to assist.