How to protect yourself and your loved ones if you become temporarily or permanently disabled

 

There’s nothing wrong with your head, apart from the throbbing gash over your right eye and the 20 stitches that are holding it together.  You vaguely recall screeching brakes and flying glass.  You notice your right leg and arm are suspended in traction and your foot is itchy.  You are also thirsty. 

The doctors are talking about a lengthy period of rehabilitation with intensive physio and occupational therapy.  You will not be able to drive for six months.  You live alone. 

You and your newest friend named “Panic”, ponder how you might manage your ablutions, answer your front door or prepare a meal.  

What now?

With your mind accelerating into overdrive, you stress over how much of the recovery tab your medical aid may pick up?  (Or not.)  Since you have no family and your closest friend has a house with stairs, where will you go for the next six months?  What can you afford? 

Unless you are prepared to give someone you trust, a Power of Attorney to handle all your affairs and pay your bills over the next six months, a curator will have to be appointed.  This is tantamount to giving a complete stranger access to all your financial and personal affairs.

Can there be anything worse?

Yes.  Reduced mental capacity.

Whether temporary or permanent, from concussion to brain damage, early onset dementia to Alzheimer’s.  Once you are mentally incapacitated without a plan B, you are deemed to be incapable of taking care of yourself.  A curator it is.  (A Power of Attorney has no legal standing with respect to mental incapacitation.)

The curator will be appointed by the courts.  He or she may be the nicest person you have ever met (you have reduced mental capacity!).  The truth is that the courts do their best to appoint honest, suitably qualified people and there are many good and able curators, but the fact remains, you do not know this person who is now in complete control of all your affairs, with access to every nook and cranny of your life – including where you may have to spend the rest of your life.

There is a way better option.  It requires foresight, common sense and planning.  Nobody wants to be beholden to a third party for their care, it is a burdensome responsibility that may render you powerless and vulnerable. 

A contingency plan created before any physical or mental incapacitation happened, will have kept the newly-disabled person in the driver’s seat. It entails a personal blueprint of instructions that covers any future physical or mental incapacitation.  It is a plan that replaces complete strangers with people one knows and trusts.

Disability Planning within a Discretionary Living Trust represents a protective legal framework that holds the Trustees accountable to the law, to you and to each other.

Life happens. 

Get ahead of the threat and contact my respected associate, Dr Mervin Messias, a specialist in this field with years of professional (and life) experience.  For an appointment, call 011 – 783 0108 or email mervin@mmtrustspecialist.co.za. Please tell him that Bregman Moodley referred you to him.

Recognition of foreign marriages in South Africa

 

Destination weddings 

If you intend to have a destination wedding or if the husband is not a South African, you can and should enter into an antenuptial contract regulating the consequences of your marriage. Otherwise, you may be married in community of property. See this article. 

Registering a foreign marriage in South Africa 

You should inform the Department of Home Affairs (DHA) of the foreign marriage to update your marital status and surname, if it has changed, on the Population Register. 

You must submit the following documents to register the marriage: 

·         A written request for the foreign marriage registration, including your full contact details (address, mobile number, and email address). 

·         Your South African passport or identity document. 

·         Original or certified copy of the foreign marriage certificate accompanied by an English translation by a sworn translator if the original marriage certificate is not in English. 

The DHA does not issue a certificate confirming the changed status. However, it will capture the information on its website. 

Change of surname 

A female South African citizen who has changed her surname after marriage may apply for a new tourist passport and identity document reflecting her new married surname. 

However, she does not need to apply for the change of her surname formally and may choose to use either:

·         Her married surname 

·         Her maiden surname 

·         A double-barrel surname combining both married and maiden surnames

·         Any other surname had at any time prior to her current marriage 

Any male South African citizen who has chosen to change his surname after marriage must make a formal application for the change of surname.

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.

 

What can I do if I get bumped off my flight due to overbooking?

By Dean Brainin.

Overbooking refers to when the total number of seats booked by customers for a specific flight exceeds the total number of seats available on that flight. But why does this happen?

It is a common practice in South Africa and worldwide for airlines to deliberately overbook flights. Airlines do this to ensure that when the aeroplane takes off, there are no empty seats available. Having a fully occupied aircraft means maximizing profits, and overselling tickets is the best way to achieve that. Moreover, overbooking can help the airline keep costs low.

According to Chris Zwiegenthal, the Head of the Airlines Association of Southern Africa, “the overall aim of overbooking is so airlines can maximize revenue around load factors as well as avoid having empty seats that are either not used due to no-shows as well as being able to accommodate passengers on standby who urgently need to travel”.

Worldwide, airlines have conducted their research on overbooking flights from a financial perspective. In turn, airlines overbook flights as they are almost certain that a percentage of passengers will not show up for their flight and, further, will not inform the airline of their cancellation. Moreover, airlines expect several passengers to board their plane, coming from a connecting flight that may have been delayed or cancelled. For this reason, airlines sell more tickets than there are seats available to guarantee revenue.

The question is then, what happens if all the passengers arrive, the flight is overbooked, and I get bumped off?

For a start, consumers in South Africa are fortunately protected in these situations by the Consumer Protection Act 68 of 2008 (“The CPA”). The CPA protects consumers against over-selling and overbooking goods and services. Section 47(2)(a) of the CPA expressly states that:

“A supplier must not accept payment or other consideration for any goods or services if the supplier has no reasonable basis to assert an intention to supply those goods or provide those services”.

The CPA prohibits the overbooking of flights because a supplier or service provider may not accept payment of goods or services that do not exist.

So, what are your rights in terms of the CPA?

If you have been bumped off your flight due to an airline overbooking, Section 47(3)(a) and (b) of the CPA outlines a consumer’s right of recourse and sets out what the supplier must do and is as follows:

“The supplier must:

(a)   Refund to the consumer the amount, if any, paid in respect of that commitment or reservation, together with interest at the prescribed rate from the date on which the amount was paid until the date of reimbursement; and

 

(b)   In addition, compensate the consumer for costs directly incidental to the supplier’s breach of the contract, except to the extent that subsection (5) provides otherwise.

It is important to calculate your costs incidental to the airline overbooking your flight accurately and keep documented proof thereof if you intend to institute a possible damages claim against the airline.

Suppose the airline bumped you from your flight because of overbooking but can offer you an alternative flight shortly after that. In that case, you may not unreasonably refuse such a request, and doing so will result in you having difficulty getting a refund.

It is clear that despite the CPA prohibiting airlines from overbooking flights, it remains a common practice amongst airlines to maximize revenue. Suppose the airline does not offer you an alternative plan or refuses to furnish compensation in any form. In that case, you should seek the assistance of an attorney to enforce your rights and ensure you are not taken advantage of by the airline.