Box 1: Defining incapacity
The following extract is from a proposed Bill. It has not been tabled in Parliament yet, and is unlikely to be in the near future, but the principles it contains can nevertheless be followed as a matter of good practice.
Adult with incapacity
4. (1) An adult is an adult with incapacity if at the time a decision needs to be made he or she is unable, temporarily or permanently and irrespective of the cause – (a) to make the decision for him or herself on the matter in question; or (b) to communicate his or her decision on that matter.
4. (2) An adult is unable to make a decision for him or herself as contemplated in subsection (1a) if he or she is unable (a) to understand or retain the information relevant to the decision; or (b) to make an informed, rational decision based on that information.
4. (3) An adult must not be regarded as unable to understand the information referred to in subsection (2a) if he or she is able to understand an explanation of the information in broad terms and in simple language.
4. (4) An adult must not be regarded as unable to make a decision referred to in subsection (2b) merely because he or she makes a decision which would not be made by a person of ordinary prudence.
4. (5) An adult must not be regarded as unable to communicate his or her decision referred to in subsection (1)(b) unless all practicable steps to enable communication of the decision has been taken without success.
Source: South African Law Reform Commission, Discussion Paper 105, Assisted Decision-making: Adults with Impaired Decision-making Capacity (January 2004).