10/05/2017
Your parents are at risk of making bad financial decisions
Geraldine Macpherson is a Legal Marketing Specialist. She offers insights into how current SA law protects ageing parents and gives advice on measures to have in place
The reality for those of us over the age of 40 is that our parents are ageing. One of the biggest risks for the elderly is bad financial decision-making. These are often a result of falling for scams, or being in a situation where they’re mentally incapacitated and unable to make decisions.
Your parents may want to give you general power of attorney to deal with their affairs. This provides you with the right to transact on their behalf when they’re not physically present, but what many people don’t realise is that as soon as the person granting the power of attorney lacks mental capacity, then the power of attorney they signed becomes null and void, and continuing to act on it amounts to fraud.
So, while a power of attorney gives you the right to stand in a queue and sign the documents when your parent is too physically frail to do so, once he or she has dementia or Alzheimer’s disease, that power of attorney is no longer valid and may not be used.
Don’t allow power of attorney to be abused
Time and again we see abuse of powers of attorney by children manipulating their parents to benefit themselves, often at the expense of siblings, and at times even blatantly stealing from their parents. It must be accepted that those who lack mental capacity are extremely vulnerable and thus strict measures are in place to protect them.
In countries like the UK, there’s the concept of an “enduring power of attorney”, which continues to be valid if the grantor becomes mentally incapacitated, but this must be granted prior to the mental incapacity occuring. Unfortunately, this concept isn’t applicable to South African law, as it could solve many practical problems, at a small cost.
If your parent’s no longer mentally capable of making decisions, there are two options, one of which is applying to the High Court to have him or her placed under curatorship. This is a complex and costly process, requiring compelling medical evidence, as well as the services of not only an attorney, but also an advocate, as it’s a High Court matter. This could cost tens of thousands of rands in legal fees.
The other option is to apply for an Administration Order in terms of section 60 of the Mental Health Act. This would be the cheaper route, but the administrator’s powers are more limited than the curator’s and it’s necessary to report to the Master on an ongoing basis.
A possible solution is to ensure that assets are held in trust, prior to your parents needing such intervention. The trustees would then be able to make financial decisions (without the need of a court order) for the benefit of your parents. The challenge is that you don’t know if this will even be necessary and the costs may be prohibitive. In a situation where all the siblings are emigrating and only the parent is being left behind, it may be worth seriously considering this option and obtaining legal advice on it.
Five important considerations when taking care of your parents
Unfortunately, taking care of your parents’ finances is a very challenging issue in South Africa due to the deficiency in our law, but there are some basic structures you need to ensure are in place:
Your parents must have a valid will. If one parent has already passed away and the couple had a joint will, make sure the surviving parent has entered a new will as it may be difficult to trace the original one at the Master’s office.
Speak to your parents about a life file which contains a list of all investments, bank accounts, insurance policies, doctor’s details, list of chronic medication, medical details, etc. This file will be important in the event of ill-health (especially if hospitalisation is required) and death.
Make sure that your parents are being serviced by a credible financial planner and, where possible, that at least one of the adult children is involved in all the financial decisions taken and that the siblings are kept in the loop. The balance of power between siblings is incredibly important – you don’t want any of them to feel you’re manipulating your parents to serve your own ends.
Encourage your parents to use Internet banking so that you can easily assist them in paying and managing accounts and can, to a large extent, automate the administrative side of their lives, which can become stressful in later years.
Ensure you educate them about the importance of keeping passwords safe and remind them regularly of the scams that are out there.