There are many situations in life which can result in a person no longer being able to manage their financial affairs or make informed decisions. This usually follows cases of mental illness, intellectual disability, physical disability or ageing related issues in general. In such cases, the only way to assist these people is to bring an application for the appointment of a curator bonis or a curator ad personum. This practice is otherwise known as curatorship.
In South Africa, there is no legal enduring power of attorney so even if the patient has given a family member or friend a power of attorney to act on his/her behalf, as soon as the patient’s mental capacity diminishes to below the legal threshold, the power of attorney falls away. This has serious consequences for the person who is appointed in terms of the power of attorney as should they continue to act in terms of the power of attorney, their actions amount to fraud and they can be prosecuted. For this reason there needs to be an application appointing a curator.
The Supreme Court Rules strictly demand that there be a formalised procedure in appointing a curator:
• Initially a request for the application of curatorship is brought to the court by a person who is close to the patient. This can be a friend, family member, carer or even an institution.
• The court is requested to make an order, in accordance with Rule 57, that the patient is declared of unsound mind and incapable of managing his/her affairs. This is done with supporting affidavits from two medical practitioners, one of which is a psychiatrist.
• The court will then appoint a curator ad litem, normally an Advocate nominated by the applicant, whose job is to represent the patient and compile a report on the investigation into possible curatorship appointment candidates. He/she will present their findings to the Court and the Master of the High Court.
• The curator ad litem will then recommend the appointment of a curator ad personum or bonis, and the application, with the curator ad litem’s report is filed with the Master of the High Court who then files a report either approving the appointment of a curator ad personum and/or curator bonis or refusing such appointment. If the Master approves the appointment, he will give a list of the powers to be held by the curator.
• The matter is then set down again for a final order by a Judge appointing the curator.
Riva Lange Attorneys is experienced in the procedural and practical aspects involving cases of curatorship. What is normally a laborious and difficult affair is made as smooth as possible. Coupled with their genuine care for clients, they can ensure the road travelled is as painless as possible.