The reality of life is that there are times when our loved ones become incapacitated by illness, mental health challenges or perhaps age-related issues. Such circumstances may leave them unable to care for themselves and their finances, which can make them particularly vulnerable. Fortunately, our law makes provision for these situations. If you know of someone who is incapacitated, it may be time to consider appointing a curator to assist if the circumstances do not allow for the granting of a valid Power of Attorney. Below some of the key issues that relate to how a mentally incapacitated person can be assisted, are discussed.
Before proceeding with an application for curatorship, it is important to consider the status of an individuals’ mental capacity. This is because one of the requirements for contractual validity is that all parties must demonstrate the ability to understand the nature, purpose, and consequences of their actions. Thus, if a person’s mental capacity has been diminished, it is necessary that someone is legally appointed to assist them and this is done by way of an Application for Curatorship.
Such an application may be done either in terms of the Common law, which requires an application to the High Court, or in terms of the Mental Health Care Act, 17 of 2002.
If an application is made in terms of the Mental Health Care Act—which is more limited in its application—the Master of the High Court may appoint an administrator to manage the property of a person who is incapacitated.
Rule 57 of the Uniform Rules of Court sets out the purpose and procedure for an application to the High Court for the appointment of a curator. There are three types of curators that are provisioned for, namely:
- Curator ad Litem: A curator who is appointed for litigation purposes and to investigate the appointment of a curator bonis or curator personae.
- Curator Bonis: A curator who is appointed to manage the property and finances of a person who is incapable of handling their own affairs. This person can be a family member, friend or someone appointed by the Court.
- Curator Personae; A curator who is appointed to make decisions which affect the health and well-being of the person.
An application to the High Court is initiated by way of Notice of Motion supported by an affidavit deposed to by the applicant. The affidavit sets out the facts and circumstances detailing why the ‘patient’ is mentally incapacitated, and incapable of managing their own affairs. The applicant is generally an interested person, such as a family member or friend. Additionally, further documentation must be supplied: two medical reports must be submitted and one of these reports must be from a psychiatrist (although psychologist reports are now widely accepted), to confirm the patient’s medical condition.
Typically, at the first hearing the Court will appoint a Curator Ad Litem, who is generally a legal practitioner or advocate to investigate the matter. The Curator Ad Litem will do an investigation and submit a legal report of their findings to the Master and the Court, which includes a recommendation for the appointment of a Curator Bonis and/or Personae. The investigation includes consulting with the applicant, patient, doctors and whoever else they may deem relevant to the proceedings.
Thereafter, the matter is set down for a second hearing where the Court will either grant or deny the application based on these finding.
As this procedure involves a High Court application, it is relatively expensive and given the process it takes some time. The costs are however usually paid out of the patient’s estate once the curator has been appointed.
The process is somewhat complicated for a layperson to attend to on their own, and it is advisable that the services of an attorney be used to avoid unnecessary delays.
Article by Michael Campbell