What is a curatorship application?

In South Africa, a curatorship application is a formal legal process initiated in the High Court to appoint a curator to manage the affairs of an individual who is legally incapable of doing so themselves. This incapacity can stem from various reasons, primarily mental illness, intellectual disability, physical disability, or age-related cognitive decline (like dementia).

The core purpose of curatorship is to protect the interests and well-being of the incapacitated person (often referred to as “the patient”) from exploitation or mismanagement of their affairs.

There are generally three types of curators that can be appointed:

• Curator ad Litem: A legal practitioner (usually an advocate or attorney) appointed by the court to represent the incapacitated person’s interests specifically during the curatorship application proceedings. They interview the patient, conduct investigations, and report to the court on the patient’s condition and whether curatorship (i.e. the appointment of a curator bonis or a curator personae) is in the patient’s best interest.

• Curator Bonis: appointed to manage the financial affairs and property of the incapacitated person. This includes handling bank accounts, investments, property, and paying bills. They are accountable to the Master of the High Court and must submit regular financial reports. (very common!)

• Curator Personae: Oversees the personal welfare and care of the incapacitated person. This can involve making decisions about their healthcare, accommodation, social activities, and general well-being.

Scenario

Imagine an elderly woman, Mrs. Ndlovu, who is 85 years old and lives alone. Recently, her children have noticed a significant decline in her cognitive abilities. She is frequently confused, forgets to pay her bills, has given money to unknown individuals after receiving scam calls, and has made questionable financial decisions, such as attempting to sell her house significantly below market value without understanding the implications. She also resists her children’s attempts to assist her and becomes agitated when they try to discuss her finances or daily care. Medical assessments by her general practitioner and a psychiatrist confirm that she is suffering from advanced dementia and is no longer capable of managing her own financial affairs or making informed decisions about her personal care.

In this scenario, a curatorship application would be highly suitable because Mrs. Ndlovu’s advanced dementia renders her legally incapable of managing her own affairs and the appointment of a curator bonis would safeguard her finances.  The curatorship process ensures that all, as determined by the court after thorough investigation and medical evidence, decisions made regarding Mrs. Ndlovu’s finances and personal care are in her best interests. The court-appointed curator will have the legal authority to manage her affairs, ensuring that her bills are paid, her assets are protected, and she receives appropriate care, all under the supervision of the Master of the High Court.

The application process

The process generally involves:

1. Application to the High Court: Usually brought by a concerned family member, friend, or institution.
2. Medical Reports: Affidavits from two medical practitioners (one typically a psychiatrist) confirming the person’s incapacity.
3. Curator ad Litem Appointment: In the first step, the court appoints a curator ad litem to investigate and represent the incapacitated person’s interests during the application.
4. Master of the High Court Report: The Master of the High Court reviews the application and the curator ad litem’s report, and provides their own report to the court.
5. Court Hearing and Appointment: In the second step, the High Court considers all the evidence and decides whether to declare the person incapable and appoint a curator (or curators) and define their powers.

It’s important to note that a power of attorney becomes invalid when the grantor loses mental capacity, making a curatorship application necessary in such circumstances.

The costs and the timeline

Applying for a curator to be appointed by the High Court in South Africa to a patient can be a complex and costly process. The total cost can vary significantly depending on the complexity of the case, the value of the patient’s estate, and the specific responsibilities of the appointed curator.

• • Medical Reports: You will need medical reports from at least two independent medical practitioners (often a general practitioner and a psychiatrist) to demonstrate the patient’s incapacity. The cost for these reports can range from R1,000 to R5,000 per report, depending on the medical professional’s fees and the assessment’s complexity.
  • Attorney’s Fees: Hiring an experienced attorney is essential for navigating the legal process, drafting the application, and ensuring all requirements are met. These fees can range from R20,000 to R45,000 or more, depending on the complexity of the case and the amount of work involved.
  • Advocate’s Fees (Curator ad Litem): The High Court will typically appoint a Curator ad Litem (usually an advocate) to investigate the circumstances, consult with the patient and family, and report back to the court. The fees for the Curator ad Litem’s report and appearances can be a significant portion of the total cost and could range from R15,000 to R30,000.
  • Curator Bonis (Financial Affairs): If a Curator Bonis is appointed to manage the patient’s financial affairs, their fees are prescribed by the Administration of Estates Act.
    • Annual Fee: Typically 6% of the gross annual income derived from the patient’s assets (e.g., dividends, pension, interest, rental income).
    • Termination Fee: A once-off fee of 2% of the capital in the estate when the curatorship ends (e.g., upon the patient’s death or release from curatorship).
    • For non-income-earning assets, the Curator Bonis may need to apply for a special fee.
  • Curator Personae (Personal Affairs): If a Curator Personae is appointed to manage the patient’s personal and medical welfare, their fees would be determined on a case-by-case basis.

It is highly recommended to consult with an experienced attorney specializing in curatorship matters in South Africa to get a more accurate estimate based on your specific circumstances. They can guide you through the process and provide a detailed breakdown of the likely costs.

Appointing a curator by the High Court in South Africa for a patient is a legal process that generally takes approximately 10 to 12 weeks. The time period takes into account obtaining medical reports from two independent medical practitioners as well as allowing the Curator Ad Litem time to investigate the patient’s affairs and prepare a report. Any delays occasioned by the Master’s office would add to this time period.

We are free to discuss any aspect of a curatorship application with you.