Power of Attorney vs De Lunatico Inquirendo

By 17th May 2018Family Law

A Power of Attorney is a legal document that transfers authority from one person to another. It is a document which has significant implications and dictates current and future transactions. There are two forms of Power of Attorney documents used namely:

  1. General Power of Attorney
  2. Special Power of Attorney

Usually a General Power of Attorney caters for a wider scope of authority that allows the nominated agent the power to endeavour into various transactions and contracts relating to property, business and financial affairs. As opposed to the Special Power of Attorney that has a narrower scope in that it allows for the execution of a specific mandate i.e. to conclude a sale agreement and whereby the Special Power of Attorney terminates on conclusion of the particular mandate i.e. the sale.

Often the Power of Attorney documents are entered into with a ‘quick fix’ mentality and the seriousness of its implications not given enough consideration. This is due to the fact that it is convenient to transfer authority to another for reasons such as being out of the country or time constraints. However what happens in the event that the grantor of such power or authority is mentally unsound? Or due to deteriorating health a person is unable to manage his or her own affairs? Is a Power of Attorney the best suited solution?

Transfer of authority by means of a mere Power of Attorney cannot be entertained when the grantor thereof is mentally unfit when signing the Power of Attorney. It is trite law that one who is mentally unsound(non compos mentis) is regarded to have no locus standi to enter into any contract without the assistance of a curator, similarly a minor may not conclude a contract without the assistance of its guardian to render such a contract valid. It is important to note that a mere Power of Attorney cannot cure the defect of legal standing of a mentally unsound person. As a mentally unsound person is not legally capable of transferring authority it does not have, on the premise of the principals “Nemo dat quod non habet” and “Nemo plus iuris ad alium transferre potest quam ipse habet.”Simply put one cannot give what one does not have.

To be in a position to cure such a legal standing defect, Rule 57 of the Superior Courts Act 10 of 2013( hereinafter referred to as Rule 57) should be adhered to. Rule 57 also known as De Lunatico Inquirendoprovides for the detailed procedure to be followed in appointing a curator where a person is mentally unfit or a prodigal who squanders money.

In terms of Rule 57 any interested party, who should be able to clearly set out his interest , is capable of approaching the Court in an ex parte application requesting that a curator be appointed to administer the affairs of the mentally unfit individual. The application comprises of a Notice of Motion and accompanying affidavit. What should be borne in the mind of the applicant is that the procedure as set out in Rule 57 is well documented and thorough . The applicant should be in a position to justify its claim that the ‘patient’ requires assistance in managing all or some of his affairs. Therefore sufficient evidence should be adduced in the affidavit in support of the applicant’s prayer that the person in question is incapable of handling his or her own affairs. This evidence can be prima facie ascertainable from the two compulsory “alienist” reports, one being a Psychiatrist and the other a medical practitioner who has examined the non compos mentis patient.

There are three kinds of curators who can be appointed namely:

  1. Curator Ad Litem
  2. Curator Bonis
  3. Curator Personae

Of concern in a De lunatic Inquirendoare the first two curators listed above. As the court in an application to order a patient deemed mentally unfit to manage his affairs will decide who to appoint as curator ad litem and curator bonis. The curator ad litem in practice being an Advocate or Attorney who acts in the best interest of the patient in all court proceedings. The latter curator being the person who will manage the affairs, be it business or personal of the patient. The curator bonis may be a family member who is closely related to the patient and who undertakes to act bone fide in respect of the property, business and financial affairs of the patient. Once appointed both curators have a duty to compile reports relating to every aspect of the patient and to assist the Court in arriving at a just decision. Each report compiled should be filed with the Registrar of the High Court as well as with the Masters office. The Master has a duty in terms Rule 57 sub rule (4) to compile a report with recommendations relating to the best interest of the patient and his estate. Once the Honourable Court is in possession of all the above mentioned reports as prescribed by Rule 57 the matter may be heard.

“…. before the court can interfere with the right of an adult to control his own affairs the court has to be satisfied after a proper enquiry into the mental condition of the alleged patient that the interference by the Court was justified.”-Ex parte Kotze 1995 (1) SA 665 (C)

The Court will therefore with the assistance of the curator ad litem and reports before it issue an order declaring the patient unfit and for which a curator bonis will be appointed to manage the patient’s affairs. There are instances whereby a curator bonis may be appointed to an individual who is fully compos mentis but who has unsound habits such as a prodigal and Rule 57(1)-(11) apply mutatis mutandis.

In MODIBA OBO RUCA v RAF 2014 ZAGPPHC the Honourable Court ruled against the practice which culminated in certain provinces that seemed to bypass the requirement directing the applicant to provide the Master with a copy of the application. Thereby excluding the latter’s report on the hearing of the matter. However as reiterated in the lengthy judgement handed down, Rule 57 cannot be ignored and failure to observe it’s requirements in entirety renders the application defective.

It goes without saying that a mere signing of a Power of Attorney by someone no longer compos mentis will remain invalid and any step in circumventing particular sub rules contained in Rule 57 will not pass judicial scrutiny. Therefore an agent of a Power of Attorney as well as an appointed curator, needs to consistently act bone fide with regards to the financial and personal affairs of the person or patient in question. A Court who is approached in a dispute in light of a Power of Attorney or De Lunatico Inquirendo, will always protect the interest of the vulnerable patient. The High Court remains the upper guardian of minors, and persons who are considered to no longer be compos mentis.