Good day

I am writing to seek guidance regarding the legal responsibilities concerning the financial affairs of my grandmother, who is currently residing in a care facility. For the past five years, my aunt and her husband have been managing her financial matters, including institute fees, medical expenses, doctor's visits, and pharmacy bills. Initially, my grandmother was mentally competent, but approximately three years ago, she was diagnosed with advanced Alzheimer's disease, rendering her incapable of managing her own affairs. Despite this, my aunt and her husband continued to oversee her finances without obtaining the requisite authorization under Section 60(1) of the Mental Health Care Act, which is mandatory for managing the financial affairs of a mentally incapacitated individual.

Regrettably, my aunt has recently passed away unexpectedly, necessitating a transition of responsibility for my grandmother's financial affairs. Upon reviewing the situation, it has come to our attention that no application for the appointment of an Administrator under Section 60(1) of the Mental Health Care Act was ever submitted, thereby rendering the previous handling of my grandmother's finances illegal. Despite assurances from my aunt's husband that he will continue to cover this month's expenses using my grandmother's account, we are unable to access her financial records or make payments due to the absence of the required legal authorization.

In light of these circumstances, I seek clarification on the following matters:

How and where can an application for the appointment of an Administrator under Section 60(1) of the Mental Health Care Act be submitted to assume responsibility for my grandmother's financial affairs?

In the event that such an application is approved, and access to my grandmother's bank account is granted, what recourse do we have if we suspect unauthorized or inappropriate transactions by my aunt's husband?

While we currently lack evidence due to our inability to access financial records, we harbor legitimate concerns regarding the use of my grandmother's funds. We know that my grandmother should have +- R800000 in the bank as a fixed saving, then she gets her monthly pension fund as well. It seems that the whole amount has now disappeared with only R7000 left in the bank. We suspect that my grandmother's money has been taken by my aunt's husband. 

Given that my mother is the sole surviving family member of my grandmother, does she possess legal entitlements to her mother's personal accounts superior to those of my aunt's husband? To my knowledge, my grandmother never authorized her aunt's husband to access her account or utilize her funds, with permissions granted solely through my aunt.

How would one gain access to obtaining information to see where the money went? If we find evidence that he stole the money over the years, are there any way to get it back? We cannot pay or my grandmother's care out of our own account. Will we need to go to court if we find evidence? If we need to go to court, what are the chances of winning. We do not have money to waste on a court case we cannot win. 

Although the circumstances surrounding my aunt's demise are under scrutiny (in states that she died of natural causes, but our whole family knows he was abusive), my immediate priority is ensuring the proper management of my grandmother's care expenses. Your guidance and support in navigating these legal matters are greatly appreciated.

Thank you for your assistance.

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

Given the value of your grandmother's estate, I would suggest that you do NOT proceed with an appointment for an administrator in terms of Section 60(1) of the Mental Health Care Act and RATHER apply at the High Court for the appointment of a curator ad litem and then a curator bonis.  This would be the better, tried and tested, and probably the same cost, way of going about things. 

Especially if your aunt (who was assisting in managing your grandmother's estate) has recently passed away. 

If you are unable to access your aunt's bank account etc, it might be because your uncle is interfering with your access (possibly, and I say possibly because maybe your aunt wasn't doing a good job of administering the money) or it might be because the bank requires a new power of attorney, or such like, in order to give you guys access to your grandmother's accounts.  I don't know for sure. 

How and where can an application for the appointment of an Administrator under Section 60(1) of the Mental Health Care Act be submitted to assume responsibility for my grandmother's financial affairs? --> Like I said, I would suggest the curator approach.

In the event that such an application is approved, and access to my grandmother's bank account is granted, what recourse do we have if we suspect unauthorized or inappropriate transactions by my aunt's husband? --> The curator would be empowered to sue your aunt's estate (or her husband) for any damages that your grandmother might have suffered as a result of the illegal administration of your grandmother's estate, which would include any money which may have gone missing during the time of administration.

You would obviously need to investigate all of this with reference to bank statements which you would need to obtain from the bank for the past five years or so. After the investigations have been completed, the curator would need to make a call as to whether there is a claim or not. 

Given that my mother is the sole surviving family member of my grandmother, does she possess legal entitlements to her mother's personal accounts superior to those of my aunt's husband? --> Unfortunately not. In terms of the law, your grandmother is the only person who would possess legal entitlement to her own personal accounts.  Obviously, if she gives somebody a power of attorney to access the accounts on her behalf, that would also work - however, if she has dementia she is legally unable to provide any power of attorney.

How would one gain access to obtaining information to see where the money went? --> You would need somebody with the proper authority to go to the bank and request bank statements for your grandmothers accounts. The bank will obviously ask the nature of the authority, whether it is a power of attorney if it is via the appointment of an administrator or if it is a curator.  As far as I'm concerned, the bank should refuse to provide bank statements to either yourself or to your late aunt's husband - simply because neither of you are clients of the bank for that account.

If we need to go to court, what are the chances of winning. --> It all really depends on the evidence that you have and whether you can prove that your late aunt (or her husband) withdrew money from your grandmothers account without her knowledge or consent, for the own personal use.

We do not have money to waste on a court case we cannot win.  --> The reality of the situation is that nobody has money to waste on a court case that one cannot win, so my suggestion is to either get an administrator appointed or to apply for a curator to be appointed and then to investigate your grandmother's affairs property before making a decision as to launching court proceedings.