INCAPABLE OF MANAGING AFFAIRS?
There are several situations in life that 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 general ageing-related issues. The only way to assist these people is to apply for the appointment of a curator bonis or a curator ad personam.
It is fundamentally important to distinguish between a curator bonis and a curator ad personam. A curator bonis is the person who manages the finances, property, or estate of the person unable to do so because of mental or physical incapacity. A curator ad personam tends to the day-to-day needs regarding the living, care, and treatment of the Patient. The latter form of curatorship is a far greater curtailment of a person’s rights and freedoms, the court will not lightly make such an appointment unless there are exceptional circumstances.
Curators are accountable to the Master of the High Court. A curator bonis is required to 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 appointed as curators (with a few rare exceptions).
The curatorship application is initiated by the application for the appointment of a curator ad litem (to investigate the need for a curator to be appointed), normally an Advocate nominated by the applicant or their attorney. The applicationshould be supported by reports of two medical practitioners who have assessed the Patient recently, and are able to attest to the extent, duration, and nature of the mental condition of the Patient and make a recommendation that a curator is, in fact, needed. Once the various assessments have been conducted and the reports have been filed with the Master of the High Court, the matter can be placed before the court for an order declaring the Patient of unsound mind and/or incapable of managing his/her own affairs. The person bringing the curatorship application or their legal representative usually recommends a curator bonis and/or a curator ad personam
who should be appointed if the court grants the above order, and they need not be the same person.
There are instances where a Patient, who has been declared to be of unsound mind and is under curatorship, may recover and no longer require the assistance of a curator. In this case, an interested party may bring an application before the court requesting the release of the Patient from curatorship. Further assessments will be conducted to determine whether the Patient is in fact capable of managing their own affairs. If that is true, the court will likely order the release from curatorship.
The above article briefly outlines the application for the appointment of a curator process. If you believe there is someone in your life who would benefit from the assistance of a curator or wishes to be released from curatorship, please contact Rifqah Omar at romar@bissets.com or via the relevant contact details below.
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).
Written by: Chelsea Banks – Candidate Attorney
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