This is typically in situations that involve mental illness, intellectual disability (e.g. caused by a motor vehicle accident of a stroke), physical disability or age-related concerns such as dementia.
Power of Attorney
While a Power of Attorney may already have been signed, providing a third party authority to act on behalf of the individual in certain situations, our law stipulates that such a Power of Attorney becomes inoperative the moment the grantor of the Power of Attorney loses capacity to act on his or her own behalf. It is therefore unlawful for an agent to act in terms of a Power of Attorney if he or she is aware that the principal has lost capacity to act.
Who appoints a curator?
In order for another person to be appointed to act on behalf of this individual and administer his or her estate, an application for curatorship can be made in one of two ways: a curatorship application to the High Court or an application to the Master of the High Court. The route for this application will depend on the context of the specific case.
Curatorship application to the High Court
The first procedure is for the common law appointment of a curator in terms of Rule 57 of the Uniformed High Court Rules. An application will be made to declare the person unsound of mind and incapable of managing his or her own affairs and to appoint a curator bonis (the person who will be in charge of the individual’s estate). Such an application must be made by an interested party, usually a close family member in the jurisdiction in which the individual resides.
In order for the application to be approved by the High Court, it must be accompanied by two medical reports that support the assertion that the individual is unfit to manage his or her own affairs. These supporting reports will usually comprise one from a general medical practitioner and one from a neurologist or psychiatrist after thoroughly assessing the individual.
Application to the Master of the High Court
The second procedure is in terms of the Mental Health Care Act (Act 17 of 2002). The process for this application is slightly simpler and is intended to cater for smaller estates where the individual’s annual income does not exceed R24,000.00 and the full estate does not amount to more than R200,000.00.
This procedure does not involve a High Court application. Instead, the applicant must lodge a similar application with the Master of the High Court who will then appoint an administrator for the estate, should this be deemed appropriate based on the application.
The powers given to a curator bonis or an administrator enables him or her to administer the estate of the person who is incapable. Such responsibility includes the following, subject to approval by the Master of the High Court:
- To receive, take care of, control and administer all the assets
- To carry on or discontinue, subject to any law which may be applicable, any trade, business or undertaking
- To acquire, whether by purchase or otherwise, any property (movable or immovable) for the benefit of the estate
- To apply any money for the maintenance, support or towards the benefit of the person and to invest or reinvest any funds
- To apply for approval before constructing a new building
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