Understanding the Appointment of a Curator in South Africa
Understanding the Appointment of a Curator in South Africa
When a loved one is no longer able to manage their own financial or personal affairs due to mental incapacity, South African law provides a way to protect them through the appointment of a curator. This process ensures that their interests and estate are safeguarded.
In this article, we explain – in simple terms – how the appointment of a curator works.
What is a Curator?
A curator is a person appointed by the High Court to manage the affairs of someone who is unable to do so themselves due to mental incapacity. There are two types:
- Curator ad litem: a temporary investigator who advises the Court on whether a curator is needed, and who should be appointed.
- Curator bonis: the final curator appointed to manage the person’s estate and financial affairs.
Who Can Apply for a Curator?
Only someone with a direct interest in the matter can apply to the Court. This is usually a family member, but it could also be another person who has a legitimate interest in the welfare of the individual.
The Two-Stage Court Process
The appointment of a curator is a two-step legal process:
First application – appointment of a curator ad litem
The applicant asks the High Court to appoint an interim curator (usually a lawyer) to investigate the person’s condition. This curator speaks to the patient, consults doctors, and looks into the person’s financial position. They then prepare a report with recommendations to the Court.
Second application – appointment of a curator bonis
The curator ad litem’s report is submitted to the Master of the High Court for comment. The High Court then considers all the reports and decides whether to appoint a curator bonis (the permanent curator).
Medical Evidence is Essential
For the Court to consider the application, two medical reports are required:
- One must be from a psychiatrist or neurologist;
- Both doctors must be independent (not family doctors);
- They must have examined the person recently; and
- The reports must confirm that the person cannot manage their own affairs.
Without these medical reports, the application will not succeed.
The Role of the Master of the High Court
Once the curator ad litem submits their report, it is reviewed by the Master of the High Court. The Master provides feedback and recommendations, which guide the Court in its final decision.
The Curator’s Responsibilities
Once appointed, the curator bonis:
- Manages the person’s estate and financial affairs.
- Must prepare annual financial statements (income, expenses, assets) for the Master of the High Court.
- May be required to provide security (a form of financial guarantee).
The curator does not need to be a lawyer – in fact, the applicant themselves can be appointed as curator bonis if the Court approves.
Costs Involved
There are several costs to consider in a curatorship application, including:
- Legal fees (for the court applications),
- Fees for the curator ad litem,
- Medical practitioners’ fees.
The good news is that in most cases, you do not need to attend Court in person, as the matter is dealt with on paper (affidavits and reports).
What Happens After Death?
If the incapacitated person passes away, their valid Will comes into effect. The Executor named in the Will takes over the management of the estate. If no Will exists, the estate is wound up according to the laws of intestate succession.
Final Thoughts
The appointment of a curator is a complex but vital legal process designed to protect those who cannot protect themselves. If you are considering such an application, it is important to get professional guidance to ensure the process runs smoothly and complies with all legal requirements.