Court appoints lawyer to represent restaurateur father with 'diminished mental capacity'

Darren Jens Tibshraeny has succeeded in having an advocate appointed to represent his father in an application to have Jens Peter Tibshraeny declared incapable of managing his own affairs.

The son brought the application before the Western Cape High Court, which noted in its judgment that the family was “at war with itself”, after noticing a cognitive decline in his father, leading to concerns about his capacity to manage his affairs.

Jens is a 79-year-old restaurateur and has significant assets, including the well-known restaurant Willoughby & Co at the V&A Waterfront in Cape Town. The father opposed his son's application.

Darren said it had become evident that his father was increasingly unable to handle his financial responsibilities or ensure his own safety.

The son claimed he had a strong suspicion that his sister, along with his aunt and her husband, were allegedly exploiting his father’s mental condition to their comfort and advantage and that his parents were subjected to an unlawful palace revolution by those his father trusted most. 

Darren's father lives with his 80-year old wife, Elizabeth. Recently Darren's sister Natalie Bezemer and her husband, who live in the US, temporarily moved to his parents' home in Cape Town. His father's sister Angela MacLachlan and her husband Dennis MacLachlan, who are resident in Jeffrey’s Bay, also moved into the home of his parents.

Darren, who is also resident in the US, said the deterioration in his father's cognitive abilities had been confirmed by healthcare providers, who observed a marked decline in his memory, reasoning and problem-solving capabilities.

Darren alleged that contact with Jens had been limited by those around him, including his cousin who was appointed as the general manager of Willoughby & Co. He alleged that various expenses were charged to his father's credit card which were undoubtedly not for him.

Darren also alleged that follow-up medical appointments made for his father, in particular related to mental health, were cancelled by his caretakers.Two medical professionals said his father presented with a disorder. A psychiatrist recommended a curator be appointed to protect his interests.

Jens opposed the relief sought, arguing his son brought the application serving his own interests and not with the aim of serving him. He set out the infrastructure he created to enable him to continue conducting his own affairs in retirement.

Jens acknowledged being forgetful, requiring assistance with daily activities. However, he strongly advocated that he was able to manage his own affairs. He vehemently denied his support structure, particularly in the form of his daughter and sister, were taking advantage of him.

It is apparent ... that during this feud, suspicions and negative emotions towards polarised groups, anger, resentment, bitterness and self-preservation have become a prevalent feature within the family dynamic

—  Judge Gayaat Da Silva-Salie

Jens alleged there was underhandedness on the part of his son to bring and pursue the application, including placing the two medical practitioners under undue influence to make the recommendation of curatorship. 

“All this was done, he believes, because of Darren’s wish to serve his own financial interests, including escaping the liability of his alleged loan account owing to the business in excess of R9m,” said judge Gayaat Da Silva-Salie in her ruling handed down on Tuesday.

Jens maintained that while he strongly relied on his circle of trusted individuals, who kept a watchful eye on his interests and limited risks, financial and otherwise, to which he might be exposed: "I still have the ultimate say.”

The judge said it was not in dispute that he suffered from a neurocognitive impairment.

“The issue is whether it had been proven, on a balance of probabilities, that the [father] is as a result incapable of managing his affairs, warranting the granting of the relief sought.”

The judge said the father's repeated assertion that he had placed into position a reliable and trusted infrastructure in the form of his carers, namely, his sister and her husband, his daughter and her husband, his now attorney of record and accountant, which rendered the appointment of a curator unnecessary — could not be accepted by the court.

“The ability to appreciate this infrastructure support system requires that the [father] be able and continues to have the ability to understand and make informed decisions regarding his personal, financial and legal matters,” Da Silva-Salie said.

The judge said the appointment by the court of a curator would be in the best interests of the father.

“Any further delay or diversion from an order placing [him] under curatorship would only serve to prolong [his] vulnerability and potentially expose [him] to harm.”

Da Silva-Salie appointed Diane Davis SC to represent Jens in an application to have him declared incapable of managing his own affairs and for the appointment of a curator bonis.

The judge said the court papers were “sadly replete” with the reality that the wealth of the family had resulted in or contributed to significant conflict and deep divisions within its ranks.

“Different caucus groups have formed together with outsiders actively opposing each other, creating a hostile, combative and tense atmosphere.”

Da Silva-Salie said it was not in dispute that the father had always maintained the business was built into a lucrative empire for the benefit of the family and should remain in the family.

“He loves both his children, his daughter Natalie and the applicant, Darren. It is apparent, however, that during this feud, suspicions and negative emotions towards polarised groups, anger, resentment, bitterness and self-preservation have become a prevalent feature within the family dynamic.”

She said the portrayal of these events and emotions was unfortunate.

“The members of this family are urged to find common ground. The children of the respondent and his wife are urged by this court to accept that the vulnerable positions of their parents, including their state of health and their advanced age, require of their children to be at peace with each

TimesLIVE