Curatorship – what does it mean to be put under curatorship?

There are times when a person is no longer able to manage his or her financial affairs or to make well informed decisions. In situations where this is deemed to be the case, South African law makes provision for a curator to take responsibility for the individual’s affairs on his or her behalf to ensure that these are managed effectively.

The ins and outs of subject to bond approval clauses

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

Follow Snymans on Facebook for more legal information, tips and news about property.

Recommended for you

Property Blog Articles | Advice | Contractual Matters | Market News
Legislative Guidelines

SPLUMA certificates required for property transfers in Mpumalanga[post_view before=""]

SPLUMA stands for the Spatial Planning and Land Use Management Act, and SPLUMA certificates are governed by the act together with the by-laws of each local municipality.

Read More
My name has changed - what happens to my property’s title deed?
Legislative Guidelines

Trust investments and the Legal Practice Act[post_view before=""]

The Legal Practice Act, which has replaced the Attorneys Act, has made some changes regarding monies paid into attorney trust accounts and the investment of this money on a client’s instructions.

Read More
Historical monuments and renovation restrictions
Legislative Guidelines

Destruction of a sectional title scheme: precautionary steps to take[post_view before=""]

There are several reasons why a landowner or developer may decide to build a new development in the place of an existing sectional title scheme. For example, the existing scheme may be dated and no longer suited to the area. Or the demand for residential units may be very high but the old development is undesirable.

Read More
My name has changed - what happens to my property’s title deed?
Legislative Guidelines

21 facts you should know about the POPI Act[post_view before=""]

On 1 July 2021, the Protection Of Personal Information Act 4 of 2013 (POPI Act) comes into full force and effect. While the Act was signed into law on 19 November 2013, the majority of its sections were only implemented on 1 July 2020, with a one-year grace period. Now, with the remaining sections coming into effect on 30 June 2021, the Act becomes enforceable by the Regulator.

Read More
Minors and immovable property
Legislative Guidelines

Court ruling: Can you sell a property that’s not in your name?[post_view before=""]

The recent judgement in the matter of Tomlinson and Another v Tomlinson N.O and Others (11764/2015) [2021] ZAKZDHC 8 (19 March 2021) in the Kwazulu-Natal High Court, Durban has drawn attention to whether someone is able to sell a property if he or she is not the registered owner.

Read More

Need more Snymans content?

Sign up for our monthly newsletter.

Curatorship – what does it mean to be put under curatorship?

There are times when a person is no longer able to manage his or her financial affairs or to make well informed decisions. In situations where this is deemed to be the case, South African law makes provision for a curator to take responsibility for the individual’s affairs on his or her behalf to ensure that these are managed effectively.

The ins and outs of subject to bond approval clauses

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

Follow Snymans on Facebook for more legal information, tips and news about property.