“Mom has dementia, but she still signs her own documents.”
“Dad keeps giving his money away, but we can’t stop him.”
“She appointed my brother under a Power of Attorney, so surely he can manage everything?”
These are difficult situations that families may face as a parent’s cognitive functioning declines.
A person with dementia may still appear physically capable of managing their affairs. They may continue signing documents, making financial decisions and entering into transactions – even when their judgment and decision-making abilities have deteriorated.
They may:
Dementia does not automatically mean incapacity
A diagnosis of dementia does not, by itself, mean that a person has lost the legal capacity to manage their affairs. The important question is whether their condition has progressed to the point where they are no longer capable of managing their own affairs. The court therefore needs evidence of the functional impact of the person’s condition, not simply a diagnosis.
What is a curator bonis?
Where the concern relates primarily to a person’s property and financial affairs, a curator bonis may be appointed to administer those affairs for the person’s benefit. Depending on the court order, the curator may manage bank accounts, income, investments, property, expenses and other financial obligations.
The curator does not become the owner of the person’s assets. The assets remain the person’s property.
A curator persona, on the other hand, deals primarily with matters relating to the person’s care, welfare and personal affairs.
What evidence is needed?
A court will require evidence that the person is unable to manage their affairs. This may include:
A single unusual transaction may not be enough. A pattern of increasingly irrational or unexplained decisions, particularly when supported by medical evidence, may be much more significant.
But what about a Power of Attorney?
A Power of Attorney can be useful while a person still has the necessary legal capacity to grant that authority. But it is not necessarily a substitute for curatorship.
A Power of Attorney does not itself declare a person incapable of managing their affairs, nor does it give the appointed person the same court-backed status and supervision as a curator.
If there is credible evidence that an elderly person has become incapable of managing their affairs, relying on an existing Power of Attorney may not be enough.
The purpose of curatorship
Applying for curatorship can feel uncomfortable. An elderly parent may still have periods where they appear completely lucid and may strongly object to family members intervening.
But curatorship is not about taking control of someone’s assets because the family disagrees with their decisions. It is a protective mechanism intended to safeguard a person’s affairs when they are no longer capable of adequately managing them themselves.
If you are concerned that an elderly parent is becoming vulnerable to financial exploitation or can no longer manage their affairs, it is important to obtain appropriate legal advice sooner rather than later.