An Effective remedy in difficult times: curatorship appointments

The decision to place someone under curatorship can be a difficult and emotional one, both for the person being placed under curatorship and for their loved ones who are more often than not the people having to decide to take the required action.

A court-appointed curator is a person who is appointed by the court to manage the affairs of someone who is unable to do so for themselves. This person is usually appointed to protect the interests of a  disabled person or an incapacitated adult who is unable to make decisions or manage their own affairs.

The process of appointing a curator involves a court process where a judge will determine whether a person is in need of a curator and who would be an appropriate person to fulfil that role. The appointed curator may be a family member, a friend, or a professional, depending on the circumstances of the case.

The process:

In South Africa curatorship applications generally entail a 2 part court process:

  1. The First Stage:

The court is first approached by way of an application, usually on an urgent basis, for the interim appointment of a curator ad litem and the postponement of the matter to a later date for final consideration of the application.

The application for curatorship must be supported by the following affidavits:

  1. A founding affidavit deposed to by the applicant, which affidavit should set out such facts and information as relates to the patient’s mental condition and the reasons why the appointment of a curator is sought. The applicant is normally a person close to the patient and is, in most instances, the patient’s child or spouse.
  2. At least two supporting affidavits deposed to by two different medical practitioners. It is preferrable that one of these affidavit’s be deposed to by a psychiatrist who evaluated the patient’s mental state and the other be deposed to by the patient’s general practitioner or treating doctor, who should have an understanding of the patient’s medical history.

The curator ad litem will either be an advocate or attorney. After having received his/her appointment the curator ad litem’s main task is to, on behalf of the court, investigate the matter and prepare a report wherein he/she details the patient’s mental condition, means and circumstances and draw attention to any consideration which in his/her view might influence the court in regard to the terms of any order sought.

The curator ad litem’s report is further provided to the Master of the High Court (“the Master”) for his/her consideration. The Master will, after having had sight of the curator ad litem’s report and the application, compile a report commenting upon, amongst others, the patient’s means and general circumstances, and the suitability of the person suggested for appointment as curator/s.

  1. The Second Stage:

After receipt of the curator ad litem’s and Master’s report will the applicant be at liberty to approach the court on the return date for a final order declaring the patient to be of unsound mind, incapable of managing his/her affairs and for the appointment of a curator bonis and/or curator ad personam for the patient.

A curator bonis is appointed to manage the patient’s assets and financial affairs in the his/her best interests. The curator bonis’ powers have to be executed subject to the Master’s supervision and consent, in order to ensure that he/she acts in the best interests of the patient. The curator bonis is further required to submit regular reports to the Master as relates to his/her management of the patient’s financial affairs.

A curator ad personam is appointed to manage the personal affairs of the patient. The curator ad personam is responsible for making decisions relating to, amongst others, the patient’s healthcare, living arrangements, and other personal matters.

The practical value of curatorship appointments:

Curatorship appointments not only serve as a safeguard for individuals unable to manage their affairs due to mental incapacity or disability, but it also ensures that their financial and personal matters are handled responsibly, protecting them from potential exploitation or mismanagement.

Curatorship appointments provide a structured framework for managing financial and personal affairs, with regular reporting to ensure accountability. The appointment process encourages collaboration among those close to the individual, ensuring that decisions made are considerate of the patient’s best interests.

Importantly, curatorship appointments provide a legal basis for decision-making when individuals are unable to make choices for themselves. This legal framework ensures that decisions are made by following established procedures which protects both the individual and those acting on their behalf.

Conclusion:

In conclusion, curatorship appointments offer practical solutions that balance legal requirements with compassionate care. Curatorship appointments provide a structured and accountable approach to managing the affairs of those facing mental incapacity or disability. This process aims to enhance the quality of life for individuals in challenging circumstances, promoting their well-being and protection.

VDT Attorneys is well placed to assist you and your loved ones with curatorship applications. Feel free to contact our office should you require assistance and/or advice with the appointment of a curator.

Petrus van der Walt | VDT Attorneys
Direct line: 012 452 1432
Email: petrusv@vdt.co.za

June 18, 2024
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