ASSISTED DECISION-MAKING: ADULTS WITH …

1 South African Law Commission Discussion Paper 105 Project 122 ASSISTED decision - making : ADULTS with impaired decision - making CAPACITY Closing date for comment 31 March 2004 ISBN: 0-621-35014-1 January 2004 iiiContents Summary v Sources with mode of citation xv Table of cases xxvi 1 INTRODUCTION 1 Origin and purpose of the investigation 2 Limited scope of the investigation 3 Structure of the paper 5 2 DEFINING THE PROBLEM 6 3 THE NEED FOR REFORM 12 The wider context 12 International guidelines 13 Trends in comparable jurisdictions 16 Increase in number of persons with decision - making incapacity 20 Constitutional considerations 21 Related law and policy developments in South Africa 27 The anthropological position

2 Regarding mental illness in African societies 29 The demographics of South African society 30 Previous relevant recommendations of the Commission 32 The response on Issue Paper 18 34 General pointers for reform emerging from the comments 38 Other issues 39 Premise: A need for change 42 4 THE CONCEPT OF CAPACITY 45 Introduction 45 Assessing capacity in the medical context 46 The legal principles 48 Introduction 48 The influence of mental illness on legal capacity 51 The influence of mental incapacity on the ability to take specific decisions 53 Need for the law to clearly reflect capacity as a function-based concept 67 A definition of capacity or incapacity in the context of new measures 70 5 GENERAL PRINCIPLES GOVERNING INTERVENTION IN THE AFFAIRS OF

3 PERSONS with INCAPACITY 83 Typical principles 83 Examples of recent trends in other jurisdictions 89 Recent trends in related South African legislation 93 Finding a suitable approach 94 iv 6 DEALING with EXISTING INCAPACITY: CURRENT MEASURES, CRITICISM AND POSSIBLE OPTIONS FOR REFORM 100 Introduction 100 Current measures 100 Common law measures 101 Statutory measures 113 Relevance of current measures in respect of lack of decision - making capacity in specific areas 120 Criticism of the current

4 Position 121 Comment on Issue Paper 18 123 Need for alternatives 126 Possible options for reform 127 Guidelines emerging from comments on Issue Paper 18 128 Examples from other jurisdictions 129 Suggestions for the development of an alternative system 136 7 REPRESENTATION THROUGH POWER OF ATTORNEY 141 Introduction 141 Current South African law 143 Introduction 143 Requirements 145 Requisite capacity of the parties 145 Types of powers of attorney 148 Formalities 148 Scope and extent of agent s authority 149 Legal effect of representation through power of attorney.

5 Position vis- -vis third parties 150 Termination of authority 152 The concept of the enduring power of attorney 157 Introduction 157 Advantages and disadvantages 158 The need to introduce the enduring power in South African law 163 Time from which the enduring power is effective 165 Safeguards 169 Portability of an enduring power of attorney 235 Provision for alternatives where no enduring power has been executed 238 Extending the concept to personal welfare and health care 238 Terminology 253 8 PROPOSED DRAFT BILL 258 ANNEXURE 347 Respondents to Issue Paper 18 in order of receipt of submissions iIntroduction The South African Law Commission was established by the South African Law Commission Act, 1973 (Act 19 of 1973).

6 The members of the Commission are Madam Justice Y Mokgoro (Chairperson) Advocate JJ Gauntlett SC Prof CE Hoexter Mr Justice CT Howie Madam Justice L Mailula Professor IP Maithufi (Full-time member) Ms Z Seedat Dr W Seriti The Secretary is Mr W Henegan. The Commission s offices are on the 12th Floor, Sanlam Centre, corner of Andries and Schoeman Streets, Pretoria. Correspondence should be addressed to: The Secretary Telephone: (012) 322-6440 South African Law Commission Fax : (012) 320-0936 Private Bag X668 E-mail : PRETORIA 0001 Internet: The members of the Project Committee for this investigation are: Mr Justice Ben Du Plessis Prof Jan Bekker Ms Thuli Mahlangu Ms Zubeda Seedat Dr Salumu Selemani Mr Lage Vitus The project leader is Mr Justice Ben Du Plessis.

7 The researcher responsible for the investigation is Ms Anna-Marie Havenga. The Commission is indebted to Ms Margaret Meyer (Senior Lecturer, Justice College and representative of the Office of the Master of the High Court) who ASSISTED the researcher and the Project Committee in compiling the proposed draft legislation included in this Paper. vSummary This Summary should be read in conjunction with the Commission s proposed draft Bill contained in Chapter 8 of this Paper. The Bill reflects the detail of the Commission s preliminary recommendations. A copy of the Bill will also be distributed separately together with the Summary for purposes of gathering comment. The Commission invites comment on all the provisions in the proposed draft Bill. References to paragraph numbers and clauses in the Summary refer to the correspondingly numbered paragraphs in the body of the Discussion Paper and to the clauses in the proposed draft Bill.

8 INTRODUCTION The South African Law Reform Commission has been involved in an investigation into ASSISTED decision - making for ADULTS with impaired decision - making capacity since the end of 2001. The investigation was undertaken as a result of attention being drawn to the declining decision - making ability of persons with Alzheimer s disease, in particular, and the outdated and inappropriate ways in which the South African law currently deals with this situation. The Commission s work however has a broader focus: It attempts to deal with the shared problems faced by persons with diminished decision - making capacity however this was caused. Investigating the issue is in line with the increase in the number of persons suffering from diminished capacity and with extensive reform in this area of the law over the past two decades in other jurisdictions.

9 It moreover follows on an attempt by the Commission to have the concept of the enduring power of attorney introduced in the South African legal system as far back as 1988. vi This Discussion Paper follows on the publication for comment, in December 2001, of an Issue Paper (Issue Paper 18: Incapable ADULTS ). The Discussion Paper takes the investigation further. It defines more clearly the need for reform, submits for public comment preliminary conclusions reached by the Commission and tests public opinion on solutions identified by the Commission which are embodied in the proposed draft legislation. DEFINING THE PROBLEM making decisions is an important part of human life. Although we take it for granted that ADULTS can make decisions about their personal welfare, financial affairs and medical treatment, some ADULTS cannot make such decisions for themselves because of diminished capacity as a result of mental illness, intellectual disability, physical disability or an incapacity related to ageing in general.

10 A legitimate expectation of the law is that is should establish a structure within which appropriate autonomy and self-determination is recognised and protected. Such a structure should provide appropriate substitute decision - making devices and the necessary protection from abuse, neglect and exploitation. At present the law deals with decision - making incapacity by way of curatorships. The curatorship system has been criticised on the ground that if suffers from a number of serious and frustrating difficulties mainly relating to its high cost, prolonged procedure, paternalistic nature and potential for abuse. An individual can also allow another to act on his or her behalf through a power of attorney. A power of attorney however terminates on the incapacity of the person who granted the power. The latter is a major cause for concern: Frequently care givers are under the impression that the power granted by a person in their care will be effective until that person dies, even in cases where the person had severely diminished mental capacity and is therefore incompetent in the eyes of the law.