Undoubtedly, it can be overwhelming and demoralising when someone you love can no longer manage their financial or proprietary affairs due to age, disability, or illness. A curatorship offers a legal avenue to protect their interests and ensure their well-being, giving you peace of mind that their affairs are securely managed.
When is curatorship necessary?
An individual’s ability to make personal, financial, or proprietary decisions may become impaired due to diminished mental capacity. Sometimes, this impairment can be permanent and is caused by intellectual impediments, brain injury, or age-related decline. In other instances, it may be temporary, arising from a stroke or mental illness. While the onset of impairment can be sudden, it often takes a significant incident for loved ones to recognise the extent of decline. Depending on the circumstances, this may necessitate the formal appointment of a curator bonis to administer the estate of an individual who is no longer capable of managing their financial and or proprietary affairs.
What responsibilities does a curator bonis have?
As part of their overarching responsibility to assume control of and administer a patient’s estate, a curator bonis is required to continue or discontinue any business, trade, or undertaking connected to the estate, invest or re-invest funds, utilise resources to maintain, support, or otherwise benefit the patient, and acquire movable or immovable property for the estate’s benefit.
The curatorship application
According to rule 57 of the Uniform Rules of Court, application can be made to the High Court to place an individual, who is incapable of managing their affairs, under curatorship. Generally, this option is adopted in instances where the patient’s age and deteriorating mental faculties – due to dementia or Alzheimer’s – necessitates intervention.
Before the High Court agrees to grant an order declaring the patient incapable of managing their own affairs, application must be made for the appointment of a curator ad litem. Typically, a curator ad litem is an attorney or advocate appointed to represent the interests of the patient during legal proceedings.
What should the curatorship application contain?
This application, which is accomplished by way of a notice of motion, must contain various information and supporting evidence. In addition to setting out the particulars of the nominated curator ad litem and curator bonis and confirming their willingness to assist, the application must contain certain information about the patient. This includes their age, sex, and details of their means and state of health.
Crucially, the application must outline the pertinent facts and circumstances, which demonstrate that the patient has diminished capacity and is incapable of managing their own affairs. This application is supported by an affidavit attested to by someone well-known to the patient, along with two medical reports compiled by medical practitioners, including a psychiatrist, who have recently examined them. Critically, the reports must outline the nature and extent of the patient’s condition and how it prevents them from managing their affairs.
When will a court grant the order?
If the court is satisfied with the provided evidence, it will appoint a curator ad litem to interview the patient, comprehensively investigate the matter, and report their findings to the court and the Master of the High Court.
Upon receipt of the curator ad litem’s report, the Master will assess the merits of the application, comment on the suitability of the nominated curator bonis, and compile a separate report with their recommendations.
After evaluating the application and aforementioned reports, the court will then grant the order if it is satisfied that the patient is incapable of managing their affairs and that the nominated curator bonis is suitably qualified. The curator bonis, however, may not administer the patient’s estate until they have been authorised by the Master through letters of curatorship.
At STBB, our attorneys understand the sensitivity of curatorship applications and are here to guide you through every step of the process. Let us help you secure the appropriate support for your loved one when they need it most.
For expert legal assistance, contact us at estates@stbb.co.za.
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