16 May Curatorship Application
Louw & Coetzee Attorneys’ Head of Litigation and certified Family Law Mediator, Eleanor Kritzinger shares her invaluable insights on the meaning and importance of a curatorship application.
In this article we will explore the meaning of curatorship applications, when it is applicable, why is it done, how and where is it done and who is responsible for managing the process. Often initiated by concerned family, the process involves medical assessments, court evaluation, and the appointment of a Curator ad Personam or Curator Bonis to oversee financial and welfare matters.
Let’s look at the When, Why, How, Where and Who below –
When?
A curatorship application is made when an individual is incapable of managing his/her own affairs due to mental incapacity (“the patient”).
Why?
To protect the patient from making decisions that could be to his/her detriment. It is unlawful to act on behalf of a person who has lost mental capacity, only an appointed curator may do so lawfully.
How?
An application is made in terms of Rule 57 of the High Court Rules. The court declares such person to be of unsound mind and incapable of managing his/her own affairs and appoints a Curator to the person (called Curator ad Personam) or property (called Curator Bonis) to take charge of the patient’s affairs.
Where?
This application is made to the High Court in the jurisdiction in which the patient resides.
Who?
Any person who has an interest in the patient’s affairs can bring the application, but would mostly be a close family member.
Is there a Power of Attorney?
A Power of Attorney deals with the person being frail, out of the country etc., BUT it is not for cognitive impediments such as dementia or mental incapacity.
Therefore –
A Power of Attorney becomes inoperative when the grantor has lost mental capacity, and it is thus unlawful to act based on a Power of Attorney in such instances.
What is needed & what is the process?
- A founding affidavit by the applicant, setting out the personal details of the patient, full particulars of the patient’s means, general state of physical health, and circumstances of the patient’s incapability of managing his/her affairs.
- Affidavits by two medical practitioners who have conducted a recent examination of the patient and provided a report that the patient is in their opinion incapable of managing his/her affairs. One affidavit usually by a general medical practitioner, and the other by a psychiatrist.
- Approach the court for the appointment of Curator ad Litem. This is a person who may be suggested by the applicant and is usually an advocate of the High Court. The Curator ad Litem will interview the patient, and make further inquiries in order to draft a report to the court about the patient’s mental condition, means and circumstances and to confirm that the patient is indeed unable to manage his/her own affairs and that it is in the patient’s best interest that a curator ad personam or curator bonis be appointed.
- The Application and Curator ad Litem report must be submitted to the Master of the Supreme Court, and he must report to the court as to furnishing of security and powers of the curator.
- Approach the court for the appointment of a Curator Bonis and/or Curator ad personam. The Curator Bonis is the person who will take charge of the financial affairs of the incapable person. Should the patient require such assistance, a Curator ad Personam is appointed to look after the patient’s physical welfare and make decisions relating to that on his/her behalf.
In summary, curatorship applications, initiated by concerned family members, appoint curators through the High Court to protect individuals facing mental incapacity. This meticulous process involves medical assessments, court evaluations, and the appointment of curators to oversee financial and welfare matters, ensuring the well-being of vulnerable individuals.