Understanding Curatorship in South Africa: An overview

UNDERSTANDING CURATORSHIP IN SOUTH AFRICA:  AN OVERVIEW

 

In South Africa’s legal framework, curatorship serves as a vital mechanism for safeguarding the interests of individuals who are incapable of managing their own affairs due for various reasons.

 

legislation and entwined with legal intricacies, curatorship plays a pivotal role in safeguarding the rights and assets of vulnerable individuals. This article delves into the essence of curatorship, its application and utilisation in South Africa, and the issues surrounding its implementation.

 

Curatorship: A Legal Framework

 

At its core, curatorship is a legal process that involves appointing a curator to manage the affairs of an individual who lacks the capacity to do so themselves. This inability may stem from multiple factors, such as mental illness, intellectual disability, or advanced age.

 

In South Africa, curatorship is primarily governed by the Administration of Estates Act 66 of 1965, the Children’s Act 38 of 2005, and the Uniform Rules of Court which provide frameworks for appointing curators and overseeing their responsibilities.

 

Types of Curatorship

 In South Africa, curatorship takes on various forms, customised to address the unique requirements and situations of each incapacitated individual.

1. Curator Bonis:

 This type of curatorship involves the managing and safeguarding of the financial resources of the incapacitated person. A curator bonis is appointed by the High Court and is entrusted with the responsibility of handling the individual’s investments, property, assets and financial transactions. Additionally, the curator bonis must maintain accurate records and reports of all such transactions made on behalf of the incapacitated person and is accountable to the Master of the High Court of South Africa. The curator bonis must file and annual report to the Master to account for the individual’s funds.

2. Curator Ad Litem:

In cases where legal proceedings involve a party who is unable to effectively represent themselves, the court might designate a curator ad litem to advocate on their behalf. This would usually be an advocate of the High Court. The curator ad litem ensures that the incapacitated individual’s interests are adequately represented and protected in legal proceedings. It’s also up to the curator ad litem to make recommendations to the court relating to guardianship, financial management, and general welfare of the incapacitated person.

3. Curator ad Personam:

In cases where an individual requires assistance with personal matters, such as healthcare decisions or daily living activities, a curator ad personam may be appointed. This curator is responsible for making decisions related to the individual’s personal welfare, social gatherings, recreational activities, meal preparation, hygiene and overall wellbeing, to name but a few. The courts are always cautious when appointing a curator ad personam due to the restrictive nature of the role for the individual concerned.

 

Challenges and Controversies

 

While curatorship serves as a vital protective measure, it is not without its challenges and controversies. One significant issue revolves around the potential for abuse of power by curators, especially in cases where there is insufficient oversight or accountability. Instances of financial exploitation or neglect of the incapacitated person underscore the need for robust safeguards and monitoring mechanisms within the curatorship system.

 

Furthermore, the process of appointing a curator can be complex and time-consuming, often requiring extensive legal proceedings and assessments to determine the individual’s capacity and the necessity for curatorship. Delays in appointing a curator can impede the protection of the incapacitated person’s interests and assets, potentially exposing them to harm or exploitation.

 

Another area of concern revolves around to the limited access to curatorship services, particularly in rural or underserved communities due to financial or other constraints. The availability of legal representation and support for incapacitated individuals and their families is crucial for ensuring equitable access to curatorship resources and upholding the principles of justice and protection for all members of society.

 Conclusion

 

In conclusion, curatorship’s stand as a cornerstone of South Africa’s legal framework for protecting the rights and assets of individuals who are unable to manage their affairs independently.

 

Despite its importance, there are still various challenges and controversies, ranging from concerns about misuse of power to issues of accessibility and efficiency. Addressing these challenges requires a comprehensive thoughtfully devised strategy, encompassing legislative reforms, enhanced oversight mechanisms, and efforts to improve access to curatorship services for all members of society. By continuously  improving and strengthening the curatorship system, South Africa can fulfil its pledge to protect the rights and dignity of its most vulnerable citizens.

 

The above article outlines the framework of the appointment of curators in South Africa. If you know of an individual who is in need of the assistance of a curator or wishes to be released from curatorship, or if you require more information please contact Rifqah Omar on romar@bissets.com or via the relevant contact details below.

 

Written by: Rufus Dercksen – Candidate Attorney 

 

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).

 

Switchboard: 021-441 9800

Website: www.bissets.com

Bissets Whatsapp: 072 370 0416 – our Client Liaison, Tracy, will put you in contact with the relevant professionals



What is a power of attorney?

shutterstock 330024863

A Power of Attorney is a notice that gives a third party the permission to act on your behalf and/or make decisions for you. It can be restricted to specific matters (“special power of attorney”) or without restrictions for all matters (“general power of attorney”), and is considered a valuable tool when the decisions are made eg: when overseas or when a person becomes too frail to physically sign documents.

The most common instance where is power of attorney is used is with the elderly, especially when someone becomes too frail to physically sign documents. In a situation like this, a power of attorney can be considered a practical solution for convenience.

For how long does a power of attorney stay valid?

It may come as a surprise that it is not possible under South African law to sign over a power of attorney when becoming mentally incapacitated. When a person becomes mentally incapacitated and is no longer able to conduct their own affairs, the power of attorney ceases and professional assistance needs to be brought in. The reasoning behind this is that since the person signing over the power of attorney can no longer act personally, the agent can’t act on his or her behalf. If a person becomes mentally incapacitated after executing the power of attorney, the power of attorney is invalid and terminates. It becomes irrelevant that the person had full mental capacity at the time of signing the power of attorney. If someone acts on an invalid power of attorney, it can be considered fraud and they can expose themselves to personal liability for personal losses by a third party.

If someone becomes incapacitated their family can apply to the High Court to place such person under Curatorship and all authority in terms of the incapacitated person is transferred to the curator.

In addition to the above, a power of attorney will also terminate on death of the person signing over the power of attorney if the person becomes insolvent or on completion of the period for which the power of attorney was originally granted. In the case of a special power of attorney, the power granted will terminate on execution of the mandate.

For advice on this topic or assistance in any matters relating to legal matters, please contact our law specialist Elke Herbst at e.herbst@bissets.comm.

 

Elke Herbst | Associate

E: e.herbst@bissets.comm

Areas of Expertise: Wills | Deceased Estates | Curatorships

 

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)



The rights of a domestic partnership

blog 3 1

Domestic partnerships, also known as cohabitation relationships, are becoming more common in our modern day society, and it therefore becomes ever more important for parties to understand the different legal implications of being married and merely cohabiting. Parties to a domestic partnership do not enjoy the same legal protection as married couples upon termination of the partnership with regards to maintenance claims, property division or succession.

In the South African legal system, there are three forms of fully legally recognised unions, namely marriages, civil unions and customary marriages. However, in our modern society it is becoming more common for couples to live together in domestic partnerships, without ever getting married. It is important for parties to these partnerships to realise that little to no legal protection is provided upon the termination of such a relationship, either by agreement or due to the death of either party.

The general rule for domestic partnerships was laid down in Butters v Mncora: A domestic partnership does not give rise to any special legal consequences, such as that of a marriage or a civil union.

In 2006, the South African Law Reform Commission acknowledged the need for legal protection to be granted and drafted the “Draft Domestic Partnership Bill.” Parliament has however shown no urgency to pass the Draft Bill, and the legal position in South Africa thus remains unchanged.

Maintenance claims

The Maintenance of Surviving Spouses Act entitles a surviving spouse of a marriage, and a surviving civil partner of a civil union, to institute a claim for maintenance against the estate of the deceased. This provides for a claim of any reasonable maintenance needs that they cannot provide for by their own means, until such time that they remarry or pass away.

Parties of a domestic partnership should note that this protection does not extend to domestic partnerships, and thus no such maintenance claim can be made. Should the Domestic Partnership Bill be enacted in the future, section 28 will offer such an opportunity to claim for maintenance. However, at this stage no such protection is afforded.

Property Division

Parties to a marriage have a choice of two matrimonial property regimes.  Simply put this is to be married either in community of property, or out of community of property. Each property system will have different consequences flowing from it either by law or contractually due to an Antenuptial contract. However, no property regimes exist for domestic partnerships, and thus no joint estate can exist as it would in a marriage.

The Supreme Court of Appeal has recently portrayed an increased willingness to extend contract-based legal protection to parties of a domestic partnerships. Contracts can be concluded by parties in domestic partnerships to govern aspects such as division of property upon termination of the partnership. Although these types of contracts are legally enforceable, they may give rise to potential problems. The contract may be concluded solely for the benefit of one of the parties, or circumstances may occur that the parties had not anticipated when the contract was drawn up. In practice however, it seldom happens that parties to a domestic partnership actually enter into a contract.  This may be due to a mutual decision, or due to the fact that parties did not foresee a need for such contract.

Intestate Succession

In terms of the Intestate Succession Act, a spouse of a marriage will inherit if the deceased spouse dies without making a will. This has been extended to include partners of a civil union and customary marriage. Provision for inheritance by a partner of a permanent same-sex partnership has also been made in terms of this Act. This has however not been extended to the termination of heterosexual domestic partnerships, and thus no claim can be made in terms of the Intestate Succession Act on the estate of a deceased partner of a domestic partnership.

Couples living together in cohabitation relationships do not have similar rights to institute claims against the other party upon termination as they would have in a marriage or civil union. This could leave financially dependent parties in unanticipated vulnerable positions. 

Reference List:

  • Butters v Mncora 2012 (4) SA 1 (SCA).
  • Barratt A “Private contract or automatic court discretion? Current trends in legal regulation of permanent life-partnerships” (2015) 26 Stellenbosch Law Review 110-131.
  • Clark B “Families and domestic partnerships” (2002) 119 South African Law Journal 634-648.
  • Intestate Succession Act 81 of 1987.
  • Maintenance of Surviving Spouse Act 27 of 1990.
  • Skeleton A (ed) Family Law in South Africa (2010), Cape Town: Oxford University Press.
  • The Domestic Partnership bill in GG 30663 of 14-01-2008.

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)