Impaired Capacity

Families are sometimes confronted with the emotionally taxing and difficult problem of assisting a family member who lacks capacity to handle their affairs. The cause of such malady may be physical, mental or both. With increased longevity arises the prevalence of dementia.

The protection of those with impaired capacity is a complex and specialised area, as is explained in the leaflet under “Public Education”.

In essence, in terms of South African law, at present the only avenue open when confronted with a need to deal with a person’s finances who lacks capacity is to make application to the High Court, to declare such person incapable of managing his or her own affairs and appointing a person known as a Curator Bonis to take charge of his or her affairs.

Within certain income and asset limits there is a simpler process available under the Mental Health Act, 2002. The limits are fairly low, resulting in this process not being available to persons owning property above fairly modest values.

It is essential to consult a Fiduciary Practitioner of SA ® (FPSA®) or a FISA member to assist in this complex area.