There are several situations in life which may result in a person no longer being able to manage their financial affairs or make rational and / or informed decisions. This usually follows cases of mental illness, intellectual disability, physical disability or ageing related issues in general.
To assist these people it is necessary to bring an application for the appointment of a curator bonis and/or a curator ad personam. It is of importance to distinguish between a curator bonis and/ or a curator ad personam
According to Roman-Dutch law, a curator bonis is a legal representative appointed by a court of law to manage the finances, property or estate of another person unable to do so because of mental or physical incapacity. A curator bonis is therefor only concerned with the financial affairs of the person.
A curator ad personam, on the other hand, is a person appointed by a court of law to manage the personal affairs of another person unable to do so because of mental or physical incapacity. The term “ad personam” means “for the person” in Latin. A curator ad personam is therefore only concerned with the personal affairs of the person. As the appointment of a curator ad personam involves a serious curtailment of a person’s rights and freedoms, the court will not lightly make such an appointment.
A curator bonis must furnish security to the Master of the High Court, as a guarantee for doing the job properly. Practising attorneys hold Fidelity Fund certificates, that satisfy this requirement; therefore, only practising attorneys are generally appointed as curators (with a few rare exceptions).
In terms of our common law the High Court may declare a person incapable of managing his or her own affairs, and may appoint a curator to the person and/or property of such person. The procedure for this application is set out in Rule 57 of the Rules of the High Court and includes an application to court in respect of the following persons:
a) Mentally ill or mentally deficient persons;
b) Persons, who owing to physical infirmity cannot manage their own affairs; and
c) Persons declared prodigals.
Procedure for the appointment of 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, caregiver or even an institution.
The court is requested to make an order that the patient is declared of unsound mind and incapable of managing his / her own affairs. This is done with supporting affidavits from two medical practitioners, one of which should be a registered psychiatrist.
The court will then appoint a curator ad litem, normally an Advocate nominated by the applicant or his / her attorney, whose job is to represent the patient and compile a report on the investigation. 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 personam or curator bonis, and the application, together with the curator ad litem’s report is filed with the Master of the High Court, who will subsequently file a report, either supporting the appointment of a curator ad personam and/or curator bonis, or refusing such appointment.
If the Master is in support of the appointment, he will provide a list of the powers to be held by the curator. This is not a numerous clausus and would depend on the various needs of each individual patient and the various assets etc that need to be administered.
The matter will then be set down for a final order by a Judge of the High Court appointing the nominated curator. That curator will then have the legal capacity to administer the estate of the patient.
Summary of application process:
- Application to the High Court (founding affidavit by applicant and supporting documents).
- Medical reports.
- Appointment of curator ad litem.
- Curator ad litem reports to the Court.
- Master’s report supporting the application.
- Final appointment of curator bonis and/or curator ad personam.
Kobus Pieterse | Partner
Areas of Expertise: Litigation, Family Law & Curatorship Applications
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)