The Mental Health Care Act (No 17 of 2002) was supposed to be a progressive reform. Its intentions were unimpeachable — to create a fair, humane way to protect the interests of people who are unable to take care of themselves. It was all about safeguarding the vulnerable and protecting them from discrimination on account of intellectual disabilities.
Unfortunately, the Act has a dark side. For greedy relations, unscrupulous lawyers and other “experts”, it can be a license to plunder the unfortunate. Even a temporary illness or incapacity opens an individual to a world of risks and can plunge the unwary into a nightmare of powerlessness and dispossession.
It all sounds rational and fool proof. Since mental disorders affect people’s decision-making capacities, a person with a profound intellectual disability is not considered competent to manage their own financial affairs. A Master of the High Court can then appoint an administrator to care for the property of anyone duly certified as suffering from a profound intellectual disability.
On paper, the Master’s duty, in respect of the Act, is to provide efficient, cost-effective and, above all, honest services of supervision, custodianship and arbitration to safeguard the estates of people with profound intellectual disabilities.
In the real world, however, there are spouses, siblings, and other “loved ones” who are more interested in looking after themselves and unscrupulous professionals, and even state officials who know exactly how to game the system.
Together they have developed sophisticated ways to swindle those they were supposed to care for using the very Act designed to protect their victims. In their pitiless hands, people with profound intellectual disabilities lose their rights, property, and freedom.
More shocking still, even people who do not have any intellectual disabilities can find themselves reduced to poverty and helplessness because of flaws inherent to the administration of properties under the Mental Health Act.
Incredibly, these types of cases, which amount to a form of legal kidnapping, are rarely contested in South Africa and seldom come to the attention of the public. I recently came across such a case when a client, after recuperating from a serious physical illness, found himself blocked from access to his bank accounts on the basis that his physical illness had by some miracle morphed into an intellectual disability. While my client lay unconscious for a brief period after a complicated operation, his estranged wife had managed to get herself appointed as interim administrator by the Master of the High Court and had lost no time in appropriating his assets.
This happened where it was very clear that medical reports in support were dubious and, more so, whether there was a valid application for administratorship to begin with. Further, his estranged wife was made administrator despite the fact that he had named his siblings as next of kin when he was admitted to hospital. The unfortunate gentleman only discovered that the wife he had been in the process of divorcing after years of being abused emotionally and physically by her was now the legal overseer of his financial affairs when, after finally recovering from his illness, he tried to use one of his credit cards.
It was one of the most egregious cases I had seen in many years of practice, but even with all the facts on his side, it was far from easy to recover his properties and reassert control over his own life. During the process of fighting the case, there was a shocking lack of transparency from the Master’s office, with various attempts to derail the case emanating from that office. An investigator with the Master’s office even forged letters in an attempt to discredit the man.
The case raises serious reputational questions about the conduct of the Master’s office. Just last year, all 15 Master’s offices nationwide were closed while a Special Investigation Unit probed numerous allegations of fraud and malfeasances involving the assets of minors and the deceased as well as people alleged to have intellectual disabilities. I know for a fact that what happened in this case both in the way my client was defrauded and in the way we were treated when he contested the injustice involved gross malfeasance at the Master’s office.
After contesting and questioning how the issue was handled, my client’s property and dignity were eventually restored but one can only imagine the tragedy of victims who cannot afford legal representation or are genuinely not competent to act. Victims in such circumstances are effectively at the mercy of ruthless relatives and unscrupulous officials. They have nowhere to turn. There are very few accessible resources out there that the public can refer to for advice.
In a rapidly changing world, mental health has been a growing concern for some time, but the impacts of the Covid-19 pandemic, with its losses and lockdowns, has triggered a mental health crisis of global proportions. Increasing numbers of people are breaking down under these stressors.
The legal community urgently needs to zero in on the complexities of how the law can deal with mental health issues. Of particular concern is administratorship of the estates of vulnerable individuals who become temporarily or permanently incapable of looking after their affairs.