WHEN LIFE HAPPENS – WHO WILL LOOK AFTER YOUR AFFAIRS?

Curatorship is the power given by authority of law, to one or more persons, to administer the property of an individual who is unable to take care of his/her own estate and affairs. Curatorship is intended to protect the person and the person’s property.

In terms of Rule 57 of the High Court Rules any person may apply to the High Court for an order declaring another person (“the patient”) to be of unsound mind and as such incapable of managing his/her affairs.

This type of High Court application is usually made by a family member of the patient. The Notice of Motion must state the grounds upon which the applicant claims locus standi, in other words, what his/her interest in the matter is and why the court should entertain the application. The court is normally requested to do three things:

1. To declare the patient of unsound mind and incapable of managing his/her affairs;
2. To appoint a curator ad litem; and
3. To appoint a curator bonis and/or curator personae.

Furthermore the applicant must state inter alia the following in the application:

1. The grounds upon which locus standi is claimed by the applicant;
2. Why the court has jurisdiction to hear the matter;
3. Information regarding the patient’s age, sex, full particulars of his/her means and general state of the patient’s physical health;
4. The nature and duration of the relationship and association between the applicant and the patient;
5. Facts and circumstances serving to show that the patient is of unsound mind and incapable of managing his/her affairs;
6. The names, occupations and addresses of the persons suggested as curator ad litem and curator bonis or personae.

After hearing the application the court may appoint a curator ad litem. The curator ad litem is someone who conducts a court case or court proceedings on behalf of another. The most important function of the curator ad litem is to manage the patient’s interests in court and acts on the patient’s behalf as the patient is unable to do so because of mental illness. Upon the appointment the curator ad litem must without delay interview the patient and he/she should explain the nature of the application and the appointment to the patient. The curator then draws up a report. Such report is then submitted to the registrar of the court and the Master of the High Court.

After receipt of the report by the Master, the applicant may place the matter on the court roll and request the court for an order that the patient be declared incapable of managing his/her affairs and that the suggested person be appointed as curators bonis and personae. The curator bonis must manage the estate of the patient in accordance with the court order, subject to certain directions of the Master.

Compiled by: Annerine du Plessis

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)