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The South African Law Commission has released for general information and comment an Issue Paper dealing with the need for measures to protect the interests of adults whose capacity to act in the legal sense and to litigate has for some reason been diminished.

Diminished capacity can be the result of mental illness, inability to communicate because of a physical or other disability, head injury, stroke, learning disability, a specific disease (including diseases such as Alzheimer's and Parkinson's diseases) or may be related to ageing in general.

The legal principles governing mental incapacity are the same, irrespective of how the incapacity was caused. 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 (eg to enter into a contract) and to litigate (i e to appear in court as a party to a suit). These capacities depend on whether the person in question is "insane" or not at the relevant time.

A person is insane if he or she is incapable of managing his or her affairs. An insane person's capacity to act is determined by common-law principles as extended by the courts and is currently not all regulated by legislation.

Current statutory measures (the Mental Health Act 18 of 1973) applicable to mentally ill persons must be distinguished from the common-law principles and apply to the reception, detention and treatment of mentally ill persons. Measures contained in the Act concerning the care and administration of the property of a mentally ill person likewise only relate to "patients" (i e persons detained, supervised, controlled and treated in terms of the Act).

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 court to an individual's person (a curator personae) to see to his or her personal welfare (including making decisions eg on where the person should stay, and whether he or she should be admitted to an institution or undergo medical treatment).

A curator bonis can be appointed to protect the proprietary interests of a mentally incapacitated person. In addition to these, an individual can 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 (which could be caused by insanity) will thus terminate the agency.

The existing system of curatorships has been criticised on the ground that it suffers from a number of serious and frustrating difficulties. The problem of a power of attorney ceasing on incapacity has also caused concern. As early as 1988 the Commission undertook an investigation with a view to improving the plight of mentally incapacitated persons. Recommendations by the Commission for the provision of enduring powers of attorney (i e for providing that a power of attorney remain in force despite the fact that the principal has become mentally incapacitated) were, however, not promoted by the government at the time.

The number of persons suffering from diminished capacity are increasing world-wide and also in South Africa. The aged population (i e the elderly over pensionable age) in South Africa currently consists of about 7% of the total population.

Many of these persons will gradually lose their ability to administer their assets and to care for themselves. The number of persons with dementia (a broad term referring to a condition in which a person's cognitive functions decline) are also increasing and 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 world-wide trends. Moreover, in 1996 7% of the South African population was classified as disabled. These included persons suffering from disabilities relating to sight and hearing as well as mental disabilities.

In several comparable legal systems enduring powers of attorney have been introduced in the 1980's. More recently comprehensive legislative schemes to deal with the problems faced by incapable adults, their families and caregivers have been introduced 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, which required appointment of public officials where it was unnecessary.

The Issue Paper is the first step in public consultation in this investigation. Its purpose is to initiate and stimulate debate, to seek proposals for reform and to serve as basis for further deliberation. The Paper is presented in the form of a questionnaire. All parties with an interest in this matter or who may be affected by the debate are invited to comment. The Commission especially invites persons with early stage dementia and families, caregivers and friends of persons with dementia to respond to this call for comments. Written comments or suggestions should reach the Commission by 28 February 2002 at the address given below. The Issue Paper is available on request and is free of charge (contact Mr Renier Swart).

The Commission's offices are on the Twelfth Floor, Sanlam Centre, corner of Pretorius and Schoeman streets, Pretoria.
Telephone: (012) 322-6440
Fax: (012) 320-0936
Postal address: Private Bag X668, Pretoria, 0001
E-mail: ahavenga@salawcom.org.za

The document is also available on the Internet at www.law.wits.ac.za/salc/salc.html

Contact for enquiries about media statement: Ms AM Havenga

Issued by Media Services: Department of Justice and Constitutional Development and The Secretary, SA Law Commission, Pretoria, 14 December 2001