The advantages of a modern living-trust-centred estate plan

In many countries, there is what is called a durable power of attorney. Making a durable power of attorney for finances ensures that someone you trust will have the legal authority to take care of financial matters if you become incapacitated and unable to handle things yourself. (The term “durable” simply means that the document remains effective if you become incapacitated. A nondurable power of attorney would automatically end if you are no longer of sound mind). The tasks may range from paying bills to handling insurance and filing taxes. 

South Africa has not yet accepted that principle. Accordingly, if you appoint an agent on your behalf to manage some or all your affairs in terms of a general or special power of attorney, the rights that the agent enjoys under such power of attorney will lapse if you become incapacitated or die. 

Incapacity may be temporary (for example if you have a stroke that you recover from or are badly injured in a motor collision) or permanent (for example if you never recover from your stroke or suffer from dementia or other mental impairment). 

The consequence of this is that if you are deemed to be unable to manage your financial affairs your family needs to approach the High Court, at huge expense, to appoint a curator to act on your behalf. Curatorship proceedings are not only complicated and expensive, but they put private matters on public record – rarely a desirable outcome. 

If the concept of a durable power of attorney does not apply in South Africa and if South African powers of attorney lapse on your death or incapacity, what is your option? 

Approach your lawyer to implement a modern living-trust-centred estate plan. He or she will advise you how to take best advantage of the planning talents of your accountant, financial planner and stock broker, to manage your affairs, not only during your period of disability. This would enable you to have a say in the control of your property while you are alive; provide for you, your spouse, and your children, without any curator proceedings, if you become sick, injured or disabled; provide for your loved ones in exactly the way you want after you die and make absolutely sure you don’t take your family public and make a lot of strangers richer at your expense or the expense of your loved ones.

 

CCTV cameras at home and the right to privacy

 

A client asked: What is the law on CCTV installation on a private property in relation to privacy and the law? I have a situation where a camera has been set such that 85% of what is being captured is in my yard.

Privacy issues 

You have the right to protect your property and this can be done by using a CCTV system where it is necessary, such as a security measure. However, out of respect for your neighbour, CCTV systems should be used in a responsible way to respect the privacy of others. 

The problem arises when you cross the line between monitoring your own property and somebody else’s. If your camera is angled in such a way that it includes coverage of your neighbour’s yard or driveway, then complaints about invasion of privacy will follow. 

CCTV monitoring is acceptable and even welcomed in public places, but it is unreasonable to be spied on in your own private property.  

The law 

The complaints about invasion of privacy are not specifically protected in law. Our constitution gives a citizen the broad right to privacy. However, there is nothing illegal, per se, about home surveillance in South Africa.

South Africa’s Protection of Personal Information Act which seeks to regulate the Processing of Personal Information, does not apply to purely household or personal activity.

Clearly, the common law would protect you, regarding your neighbour’s CCTV cameras, when:

·         The surveillance is of a criminal or voyeuristic nature;

·         The area being monitored is one where someone would reasonably expect to have privacy, such as a bedroom or bathroom;

·         The surveillance is of such intensity that it is creating a nuisance, preventing someone from the enjoyment of their property;

·         The installation of the cameras is the result of a neighbourhood dispute involving threatening behaviour, in which case an apprehended violence order may call for the cameras to be removed.

The solution

Use some basic common sense to avoid alienating your neighbours and possibly being taken to court.

When you install CCTV cameras, make sure that:

·         You are transparent to those around you when installing your CCTV system, by informing your neighbour(s) about your system;

·         They are only monitoring your property;

·         If your camera is pointing directly at a neighbour’s property, you should take steps to reposition it to avoid complaints or in some cases accusations of violation of privacy or harassment;

·         If they are overlooking the street, there is a sign informing people they are being monitored;

·         They are not monitoring areas where people could reasonably expect privacy;

·         The stored information is not used for any other purpose than protecting your property;

·         If you record images, regularly delete the recordings and do not keep them for longer than is necessary for the protection of your property;

·         If your system captures information of an incident, retain that information as it could be use by the police to aid an investigation.