Curatorship Applications

For individuals no longer capable of managing their own affairs.

Do you know what happens if you can no longer make decisions in your own best interests? If something happens to you and for some reason you are unable to understand the nature, purpose and consequences of your actions?

The law refers to this as “mental incapacity” or “diminished capacity”, and it can be very traumatic for all parties concerned. Diminished capacity can result from any number of different causes – including mental illness, intellectual disability and incapacity related to ageing in general. As far as the elderly are concerned, one of the major causes of diminished mental capacity is dementia.

Our law attaches no consequences to the expressions of will, decisions, choices and transactions of a person who is “mentally incapacitated”. This is not meant to be a punishment – it is to protect the mentally incapacitated person from potential exploitation.

Powers of attorney

Many people, when they get older and frailer, give a general power of attorney to a trusted person (a family member, attorney, accountant or financial advisor) to transact on their behalf. What people often don’t realise is that this power of attorney can only validly be used while the principal is still mentally capable of making their own decisions, has contractual capacity and still understands the consequences of granting another person his or her power of attorney. The moment a person becomes mentally incapacitated and is no longer capable of managing his or her own affairs, the power of attorney lapses and someone has to be legally appointed to manage that person’s affairs.

Appointment of either an Administrator or a Curator

There are two legal procedures whereby someone can be appointed to administer the affairs of a mentally incapacitated person:

  • The common law procedure for the appointment of a Curator – requiring an application to the High Court.
  • The procedure for the appointment of an Administrator as set out in the Mental Health Care Act 17 of 2002.

As daunting and complex as all this may sound, I can assist and support you.

As part of my services, I will:

Conduct an initial session with all interested parties to explain the process and agree who will be the Applicant in the procedure (whether under the Common Law or the Mental Health Care Act).
Liaise with the patient’s medical advisors and family to ascertain the most appropriate procedure.
Liaise with medical practitioners to obtain the necessary medical evidence, reports and affidavits.
Liaise with family members and medical advisors to facilitate the application process and ensure the minimum conflict and trauma.
Assist with drafting the necessary papers to launch the appropriate application.
Attend to the issuing of the application at court, and obtaining a court date for the hearing.
Brief counsel to move the initial application for the appointment of a curator ad litem to represent the patient.
Attend Court for the initial application (the appointment of the curator ad litem).
Deliver the curator ad litem’s report to the Master of the High Court for his review.
Set the matter down for final determination by the High Court and appointment of a curator bonis and/or curator personae.
Facilitate the upliftment of the final court order for applicants.