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Curatorship

When it is found that a person is no longer able to manage his/her own affairs, a curator needs to be appointed to administer the estate of a person who is found to be incapable of managing her/her own affairs.

A person can be found incapable of managing his/her own affairs for numerous reasons, which can be due to brain injuries (as a result of a motor vehicle accident or a stroke), intellectual disabilities, mental illness, dementia, Alzheimer’s disease and minors. In matrimonial matters, it is sometimes necessary to safeguard the interests of minors, where such interests form part of the dispute between the parents. The situation may require that an independent person takes cognisance of the child’s wishes, which interests, however, may not always be sufficiently protected by an overworked Office of the Family Advocate.

There are generally three types of curators, namely:

  • Curator ad personam: a curator acts for the person, who sees to the patient’s daily living needs
  • Curator ad litem: curator for litigation (to be appointed before the appointment of a curator bonis as the curator ad litem will litigate on behalf of the patient)
  • Curator bonis: curator for a person’s property, whereas the curator will protect and administer the patient’s financial and proprietary interests.

High Court Application

In terms of Rule 57 of the High Court Rules, the High Court may declare a person incapable of managing his/her own affairs and may appoint a person to act as curator to that person and/or his/her property. If one considers approaching the Court to request that the Court makes such an order, one must first apply to Court for the appointment of a curator ad litem.

What is a curator ad litem?

A curator ad litem fulfils a very important function – he/she will be an independent third party (usually an Advocate or Attorney/lawyer) to the patient or minor with the sole purpose to assist the Court in investigating whether the patient or minor is of unsound mind and requires the assistance of a curator to manage his/her affairs. Rule 57 states that “Upon his appointment, the curator ad litem… shall without delay interview the patient, and shall also inform him of the purpose and nature of the application… he shall further make such inquiries as the case appears to require and thereafter prepare and file with the Registrar his report on the matter to the Court, at the same time furnishing the Applicant with a copy thereof.” It is the duty of the curator ad litem by making such enquiries as he/she deems necessary, to see that the existence and extent of the patient’s mental illness are properly investigated, and to ensure that the proprietary and other interests of the patient are adequately protected by the terms contained in the Court order. 

The name, occupation and address of the respective persons suggested for appointment by the Court as curator ad litem, and subsequently as curator to the patient’s person or property, and a statement that these persons have been approached and have intimated that, if appointed, they would be able and willing to act in these respective capacities.

The curator ad litem, in his/her report, shall set forth such further facts (if any) as he/she has ascertained in regard to the patient’s mental condition, means and circumstances and he shall draw attention to any considerations which in his/her view might influence the Court in regard to the terms of any order sought.

It is not necessary to appoint a curator ad litem to a prodigal, there being in such cases no declaration as to the patient’s unsoundness of mind.

The procedure to be followed to appoint a curator

An ex parte application will be launched at the High Court where the patient is ordinarily resident. This application may be launched on an urgent basis if the circumstances allow same to be done. The following documents will be required for the appointment of a curator:

  • Application (consisting of Notice of Motion, affidavit and annexures – which preferably are to be drafted by an Attorney/lawyer with the assistance of an Advocate);
  • Curator ad litem’s consent to act as such if appointed;
  • Certified copy of Court order appointing curator ad litem;
  • Certified copy of Identity Document of curator bonis;
  • Certified copy of Identity Document of patient.

After the appointment of a curator ad litem, the curator ad litem will commence his/her investigation as soon as possible after being ordered to do so by the High Court. He/she will thereafter file his/her report with recommendations at Court and at the Master’s Office for its consideration.

The Master also needs to file a report after duly considering the curator ad litem’s report. In this report, the Master shall, as far as he is able, comment upon the patient’s means and general circumstances, the suitability or otherwise of the person suggested for the appointment as curator to the person or property of the patient or minor, and he shall make any recommendations as to the furnishing of security and rendering of accounts by, and the powers to be conferred on, such curator as the facts of the case appear to him, require.

Thereafter, the application for the appointment of a curator bonis can be set down on the same facts as with the application for the appointment of a curator ad litem. After receipt of the Court order wherein the Court orders the appointment of a curator bonis for the patient or minor, the Master will issue a letter of appointment to the curator, which will enable the curator to act on behalf of and to manage the patient or minor’s affairs when necessary.

At the hearing, the Court may require the attendance of the Applicant (the person who launched the application), the patient, and such other persons as it may think fit, to give such evidence viva voce or furnish such information as the Court may require.

In terms of Rule 57(3), the application shall, as far as possible, be supported by:

  1. An affidavit by at least one person to whom the patient is well known and containing such facts and information as are within the deponent’s own knowledge concerning the patient’s mental condition. If such person is related to the patient or has any personal interest in the terms of any order sought, full details of such relationship or interest, as the case may be, shall be set forth in his affidavit; and
  2. Affidavits by at least two medical practitioners, one of whom shall, where practicable, be a psychiatrist, who have conducted recent examinations of the patient with a view to ascertaining and reporting upon his mental condition and stating all such facts as were observed by them at such examinations in regard to his conditions, the opinions found by them in regard to the nature, extent and probable duration of any mental disorder or defect observed and their reasons for the same and whether the patient is in their opinion incapable of managing his affairs. Such medical practitioners shall, as far as possible, be persons unrelated to the patient, and without personal interest in the terms of the order sought.

Powers and responsibilities of a curator:

The powers of a curator bonis are to administer the estate of the person who was declared incapable, which could be one or more of the following:

  • To receive, take care of, control and administer all the assets;
  • To carry on or discontinue any trade, business or undertaking;
  • To acquire, whether by purchase or otherwise, any property (movable or immovable) for the benefit of the estate;
  • To apply any money for the maintenance, support or towards the benefit of the person;
  • To invest or re-invest any funds; etc.

Who may launch an application for the appointment of a curator?

The application is usually brought by one of the patient’s next-of-kin at the earliest moment after it has become clear that the patient may not be able to manage his/her own affairs.

The Family Law Team

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