As people grow older, they may be debilitated by mental or physical ailments, which render them unable to manage their own affairs which includes but is not limited to their financial affairs and day-to-day affairs. These people are considered to posses a diminished capacity and are highly vulnerable to being taken advantage of. In South Africa, a person with an interest in such a person may bring an application on that person’s behalf in which a curator is appointed by the court to manage the vulnerable person’s affairs. The proceedings are initiated by an application to court by any person (such as a relative, a guardian or, in certain circumstances a friend) who has an interest in the matter for an order declaring another person (referred to in this rule as ‘the patient’) to be of unsound mind and as such incapable of managing their affairs. Mental illness is defined as “a positive diagnosis of a mental health related illness in terms of accepted diagnostic criteria made by a mental care practitioner authorised to make such diagnosis”. (1) Severe or profound intellectual disability is defined as “a range of intellectual functioning extending from partial self-maintenance under close supervision, together with limited self-protection skills in a controlled environment through limited self-care and requiring constant and supervision, to severely restricted sensory and motor functioning and requiring nursing care”. (2) According to section 76(1) read with 72(1) (d) of the Administration of Estates Act, the master of the High Court has a discretion to authorise a curator by any letters of curatorship granted by him to do any one or more of the following: (3) 1. To perform any particular act in respect of the property of the person concerned; 2. To take care of the property; 3. To administer the property; and 4. To carry on, subject to any law that may be applicable any business or undertaking of the person concerned. The rules governing the process prescribes the following steps to be taken: (4) 1. An application must be made to the High Court by a person who is usually next-of-kin of the subject person (hereinafter “person”). If the person does not have any relatives in South Africa then the application may be brought by any person with a sufficient interest in the person.
2. The application is in the first instance for the appointment of a curator ad litem for the person. (5) The court may in special circumstances dispense with need for the appointment of a curator ad litem. (6)
3. The curator ad litem must also make such further enquiries as is necessary or required and must thereafter file with the Registrar of the High Court and also with the Applicant a copy of the report.
4. The report must contain such facts as the curator ad litem ascertained in regard to the person's mental condition, means and circumstances.
5. The application must set out fully: - (7) • The grounds upon which the applicant claims to have the necessary standing to make the application;
• The grounds upon which the Court has jurisdiction and this is usually the case because the person ordinarily resides within the jurisdiction of the Court;
• The person's age, gender and full particulars of his means and general state of physical health;
• The relationship if any between the person and the applicant and the duration and intimacy of their association if any;
• The facts and circumstances arrived at to show that the person is incapable of managing his or her own affairs; and
• The name, occupation and address of the persons suggested to be appointed by the Court as the curator ad litem and curator bonis to the person's personal property and a statement that these persons have been approached and that they are willing to act as such.
6. The application must be supported by an affidavit by at least one person to whom the person is well known and containing such facts and information that are within the deponent’s own knowledge concerning the person's mental condition. (8)
7. The application must further be supported by two medico legal reports by medical practitioners of which one must be either a psychiatrist or psychologist who conducted recent examinations of the person to ascertain and report regarding his or her mental condition. The medico legal reports must also contain details of the mental disorder, the duration thereof and the probable possibility of recovery. The medical practitioners must reach the conclusion that the person is incapable of managing his or her own affairs. (9)
8. The Court will then consider the reports of the curator ad litem and the application itself and if satisfied that the person is unable to manage his or her own affairs will appoint a curator bonis.
9. Once a curator is appointed he takes control of the person's financial means and sees to it that the person's financial affairs are taken care of. (10) In practice, this means that he must investigate the total means of the person, and administrate the affairs of the person with due regard to his or her life expectancy. In most instances, this would entail liquidating sufficient assets for the person's immediate financial requirements and the investment on the medium to long term of such funds as may be necessary for future maintenance and costs.
10. The curator is obliged to file with the Master of the High Court on an annual basis a liquidation and distribution account of the financial affairs of the person and to report to the Master thereon.
11. The curator bonis is usually a professional such as an attorney because they must have fidelity fund insurance to protect the person against any theft of monies that has been entrusted to the curator bonis.
12. The curator bonis is entitled to a fixed fee in terms of a will or written document or fees prescribed by Regulation promulgated in terms of the Administrating of Estates Act 66 of 1965 and is based on a percentage of the gross value or the assets and the income received during the period of the curatorship. (11) For further information or if you wish to proceed with the eviction process, contact BSM Attorneys a law firm in Brackenfell, Cape Town at 021 981 7230 or by email at email@example.com. Disclaimer This article is for general information purposes only. Whilst care has been taken to ensure the accuracy thereof, the content provided is not intended to stand alone as legal advice. Always consult a qualified attorney on any specific legal problem or matter.
1. Section 1 Mental Health Act 17 of 2002. 2. See fn (n1) above. 3. Administration of Estates Act 66 of 1965. 4. See Rule 57 of the Uniform Court Rules. 5. NOTE: The function of the curator ad litem who is usually an advocate, is to investigate the matter by conducting an interview with the person who must be informed of the purpose and nature of the application. This requirement may be dispensed with if, after having consulted with a medical practitioner, the curator ad litem is satisfied that it would be detrimental to the person's health should such an interview be conducted. 6. See Rule 57(4). NOTE: This procedure has been followed when the estate was a small one with the patient has consented to the order and the court was satisfied that no further evidence could be obtained if the usual procedure were followed. Also see Ex parte Twycross 1936 EDL 389; Ex parte Hughes 1940 EDL 36. 7. See Rule 57(2) which deals with the Ex Parte Application. 8. See Rule 57(3) 9. See fn (n8) above 10. See Rule 57(13) 11. See section 84(1) of the Administration of Estates Act 66 of 1965