Curatorships | SP Beeselaar

People lacking mental capacity are unable to make decisions on their own with regards to their welfare and financial affairs. In the elderly, we often find that they are financially abused by either friends or family members who previously had a power of attorney to assist them and later when the person is no longer of sound mind their assets are being used not only for their needs.

The general rule is that a person is presumed sane and legally competent to conduct their financial affairs unless contrary proved. Both the Common Law and Statutory Law addresses the issue and provide procedures to authorise other people – i.e curator bonis – to make legal decisions on behalf of such persons. These applications are unfortunately expensive as it involves a thorough well-motivated application in the High Court. The abuse of older persons is unfortunately rife in all the provinces. The Older Persons’ Act aims at protecting older persons but proper implementation requires intersectoral collaboration, involving government departments and civil society partners. Increased budgets for services to older persons would be required if the Act is to be properly implemented.Common LawThis involves an application to the High Court in whose jurisdiction the mentally ill person is domiciled or owns the property.
There are three types of Curators namely Curator Personae (usually appointed where a person is found to be incapable of managing his personal and health affairs, Curator ad Litem (to investigate the appointment of a curator bonis and the Curator Bonis (where a person is found to be incapable of handling his own financial or property affairs)The application involves a notion of motion with an affidavit (made by a related person or person who has a concern about the person’s situation – i.e a doctor, old age home employee etc) Attached to this application two recent medical reports must be attached one of whom shall be by a psychiatrist.
The Court will then appoint a Curator ad Litem (usually an advocate at the Cape Bar) to investigate the matter and either confirm or deny the reports by the doctors provided. The Curator ad Litem will then file the report at court and at the Master

The Master will then file a report to the Court making recommendations and the appointment of a curator bonis (usually an attorney with previous experience to act as such)
The court will issue the necessary order it deems fit.
The Master will appoint the curator bonis upon receipts of the court order indicating who the said curator bonis will be, an inventory of assets of the patient, receipt on the necessary security filed by the curator bonis and the acceptance of the curator bonis to act in said capacity.

The Curator bonis only has the powers conferred upon him or her by the court in his/her letter of appointments and may not exceed those powers.

Statutory Position

Mental Health Care Act 17 of 2002 – Application to the High Court not required. The Master appoints an Administrator (section 59).
If the value of the Estate is less than R200 000 or annual income less than R24000.00 the Master may either appoint an Administrator or decline to appoint an administrator or cause an investigation to be conducted.

If the value is more than above stated – the Master MUST cause an investigation to be conducted ito Rule 57 – normally an attorney or advocate

The difference between an Administrator and that of Curator Bonis lies in the fact that an administrator may not alienate or mortgage any immovable property of the person for whom he or she is appointed unless authorised to do so by court order or consent of the relevant Master of the court.

This process is very similar to the Common Law procedure to appoint a Curator Bonis.