Natalie Macdonald-Spence, LLB, LLM, Attorney with Right of Appearance in the High Court
Sometimes in life family members can no longer, for various reasons, care for themselves. This can be due to aging whereby an elderly person can no longer physically care for themselves, or sometimes due to a medical condition or state of mind can no longer make important life decisions for themselves. Perhaps a family member has been injured in a motor vehicle accident, and their cognitive functioning has been impaired, or perhaps a loved one has developed a condition such as Alzheimers. There are many reasons a person may find themselves in a position that they can no longer look after their personal affairs or financial affairs.
If my loved one becomes incapable of managing his/her affairs, can he/she grant a power of attorney in my favour?
A power of attorney granted by someone who loses mental capacity becomes invalid once that person no longer has capacity. When a person acts in terms of a power of attorney granted by a person who lacks capacity, or where a power of attorney has become invalid due to a person's incapacity, then such person could be held liable for any acts they carry out in terms of the power of attorney.
Why the need for a curator?
When a person no longer has mental capacity (i.e. being able to make own decisions and understand the implications of such decision) then they will require assistance in caring for their needs, to ensure that they are not exploited or harmed. We've often seen in practice that sometimes people who do not have capacity can be exploited financially, or decisions are made on their behalf which is not always in their best interest. A curator, once appointed, is accountable to the Master of the High Court of South Africa and the estate of the person under curatorship must be accounted for on an annual basis to the Master. This is to ensure that the curator is carrying out his/her duties correctly, lawfully and in the best interests of the person placed under curatorship.
Curatorships in South Africa
An interested party, such as a family friend or family member of a person who requires care, may bring an application to the High Court of South Africa in terms of Rule 57 of the Uniform Rules of Court, to have a person placed under curatorship. Such a curator is called a curator bonis (note- a curator ad personam is usually only appointed in rare cases where the person can no longer make personal life decisions for themselves). Normally the court papers will need to include evidence that the person is incapable of caring for themselves any more and incapable of managing his/her own estate. Such evidence includes medical reports from such person's medical doctor and a specialist doctor (in the case of brain injury/coma/mental condition).
Once a curator is appointed, then such person will act in terms of Letters of Curatorship, which will provide the curator with authority to act. The curator is also entitled to charge an annual administration fee, which must be accounted for in the annual report to the Master of the High Court. The curator must as far as possible co-operate and consider the person placed under curatorship and should as far as possible act in consultation with such person, if possible.
For estates that are of lower value, application may in some cases be made in terms of section 60(1) & 60(2) of the Mental Health Care Act 17 of 2002 to have an administrator appointed as opposed to a curator. The administrator will have the same duties as a curator would to safeguard the estate of the person placed under curatorship.
We can help
If you are needing assistance with a loved one who can no longer manage their affairs, we can assist with curatorship applications to the High Court. You are welcome to make an appointment to see how we can assist and/or guide you through the process. Email email@example.com to find out how we can assist you. We can assist in the Johannesburg region as well as Cape Town.
Disclaimer: This article is for information purposes only and should not be regarded as legal advice. You should always seek advice from your legal practitioner. Spence Attorneys will not be held liable for any person acting on any content in this article or on our website.