In South African legal terms, when we speak of “general administration” pertaining to people who cannot manage their own affairs, we are primarily referring to mechanisms established to provide legal oversight and management of the financial and/or personal well-being of individuals who lack the mental or physical capacity to do so for themselves. This is crucial because, legally, every adult is presumed to be capable of managing their own affairs until proven otherwise.
There are two primary legal mechanisms for this “general administration” in South Africa, each with its own specific application, the first is curatorship, and the second is an Administration Order.
An administration order is applied for directly to the Master of the High Court in terms of Section 60 of the Mental Health Care Act 17 of 2002.
This mechanism is specifically for individuals who have been diagnosed with a mental illness or a severe or profound intellectual disability that renders them incapable of managing their own affairs. It is not applicable for incapacitation due to physical disability alone or age-related decline without a diagnosed mental illness.
It is normally granted when the value of a person’s estate is not sufficient to warrant a curator being appointed.
Similar to the appointment of a curator, an administrator is appointed to manage the property and financial affairs of the mentally incapacitated person.
The process requires medical certificates from two mental health practitioners confirming the diagnosis and incapacity. The Master may appoint an investigator (similar to a curator ad litem) to assess the situation, especially for larger estates.
The administrator is accountable to the Master of the High Court and must submit regular accounts to the Master.
Both curatorship and administration are forms of administration needed when an individual loses the capacity to manage their own affairs and requires assistance from a third party. This is often the case for elderly individuals with advanced dementia or Alzheimer’s, persons who have suffered severe brain injuries (e.g., from an accident or stroke), individuals with severe intellectual disabilities, or persons with certain severe mental illnesses that impair their decision-making ability.
The choice between a curatorship and an administration order depends on the specific nature and cause of the incapacity, as well as the value of the incapacitated person’s estate.
Scenario
Imagine a scenario when Mr. Dlamini, a 45-year-old man, has been diagnosed with severe intellectual disability since childhood. While he can carry out basic daily tasks and lives in a supported living environment, he has never been able to understand or manage financial matters. He inherited a small sum of money (e.g., R150,000) from a deceased parent, and he also receives a modest disability grant (e.g., R2,000 per month). His siblings are concerned that this inheritance and grant money could be mismanaged, or that he could be taken advantage of by others, as he lacks the capacity to make sound financial decisions. They want to ensure his funds are used to pay for his care, living expenses, and to improve his quality of life, without him being vulnerable to exploitation.
In this scenario, an application to the Master of the High Court for the appointment of an Administrator would be suitable because Mr. Dlamini’s severe intellectual disability directly falls under the provisions of the Mental Health Care Act and the value of his inherited assets (R150,000) and his monthly income (R2,000) are typically below the thresholds where the Master would usually insist on a full High Court curatorship application.
An Administrator would be legally empowered to manage Mr. Dlamini’s inheritance and grant money, ensuring it is used responsibly for his benefit (e.g., paying for his accommodation, food, medical needs, and recreational activities).
If Mr. Dlamini’s assets were significantly higher, or if his incapacity was purely physical without a mental component, a curatorship application to the High Court might be more appropriate. However, for relatively small estates where the incapacity is due to a mental or severe intellectual disability, the appointment of an Administrator by the Master of the High Court provides an efficient and effective legal solution.
The process and the timeline
This process is governed by Section 60 of the Mental Health Care Act. It’s designed to be more straightforward and cost-effective than a full High Court curatorship application, particularly for individuals with mental illness or severe/profound intellectual disability.
Any person over the age of 18 may submit a written, sworn application to the Master of the High Court. This is typically a spouse, close family member, or someone directly concerned with the incapacitated person’s well-being. If the applicant is not next of kin, they must provide reasons for their involvement and steps taken to locate family members.
The application is made on a prescribed form (often referred to as MHCA 39 or CB 11), which is available from the Master of the High Court’s office or legal aid services.
The key requirement is that the person in question suffers from a “mental illness” or “severe or profound intellectual disability” as defined in the Mental Health Care Act, which renders them incapable of managing their own affairs.
The Master will require medical evidence to be submitted in support of the application. This would include medical certificates or relevant reports from at least two mental health care practitioners which clearly state that the person concerned suffers from a mental illness or severe/profound intellectual disability, and that they are unable to manage their property or affairs.
The completed application, along with all of the supporting documentation must be submitted to the Master of the High Court in the jurisdiction where the incapacitated person resides or where their property is located.
Upon reviewing the medical evidence and the investigator’s report (if applicable), if the Master is satisfied that the criteria are met and the proposed administrator is suitable, they will issue Letters of Administratorship.
These letters officially empower the appointed administrator to manage the incapacitated person’s property and financial affairs.
For straightforward applications without an investigation, and assuming all of the documents are perfectly in order and submitted to a relatively efficient Master’s Office, you might see Letters of Administratorship issued within 4 to 8 weeks. Some legal practitioners might quote an average of 2 to 6 weeks in ideal scenarios.
For applications requiring an investigation by the Master, this process will take longer. You could expect the total time from submission to the issuing of letters to range from 3 to 6 months, or even longer, depending on the promptness of the investigator and the Master’s review.
Costs
There are no application fees charged by the Master for this specific application itself.
However, if the value of the person’s estate exceeds R200,000 or their annual income is above R24,000, the Master will often conduct an investigation before an administrator is appointed. The costs of this investigation will be borne by the estate. These costs might be close to R15,000.
You may incur legal fees if you choose to get assistance from an attorney to prepare and submit the application to the Master, which is often advisable to ensure compliance.
Similar to a curator bonis, the administrator is entitled to:
- 6% of the annual income of the estate.
- 2% on the value of the capital assets of the estate at termination.
We are available to discuss any administration type order with you!
