Jun 6, 2019
When you might need…or need to become…a Curator Bonis
When is a curator bonis necessary? Consider this scenario: your mother is getting on in years. She is becoming a bit frail and finds the day-to-day tasks of dealing with banking, bill paying, and other administrative matters a strain. She grants you Power of Attorney to assist her with her affairs. You can now pay her bills for her and represent her at the bank and other official outlets. Then her mental health deteriorates to the point where she is no longer lucid. “No problem,” you think. “I have Power of Attorney. I can continue to manage her business dealings for her. Glad we sorted that out.”
The limits of Power of Attorney
You could be forgiven for thinking this, but you would be wrong. In some countries, including the UK, Canada, Australia and New Zealand (notably all countries with strong links to South Africa, hence the common misunderstanding), Power of Attorney can remain in force in the event of mental incapacity. There are varying names for this: Lasting Power of Attorney, Continuing Power of Attorney or Enduring Power of Attorney. However, here in South Africa the Power of Attorney is valid only so long as the grantor of the power is in full possession of their mental faculties.
The legal reason for this is that the agent (the person to whom Power of Attorney is granted) cannot have more power than the principal (the person granting the power, i.e. your mother in our example). If your mother is incapacitated and you make decisions on her behalf, without consultation, you hold the balance of power, however benign your intentions. If you continue to exercise the Power of Attorney, which is deemed to have lapsed when the principal loses mental capacity, you are committing fraud and you could even be sued, for example by another member of the family.
The legal alternative
South African law, derived from Roman-Dutch law, makes provision for these circumstances in the form of curatorships. There are three types of curatorship that apply to caring for someone no longer able to make decisions. The process of appointing a curator is lengthy and costly, but justifiably so. Legal rigour is vital to ensure the rights of the incapacitated person are upheld and they are not taken advantage of by an unscrupulous relative or friend. A recent case before the High Court of the Western Cape involved (among other things) the marriage of a woman to a man in a frail care unit who was deemed mentally unable to understand the implications of a marriage contract. Such abuse of affection does happen, but the law attempts to mitigate the consequences as much as possible.
Rule 57 of the Uniform Rules of Court allows the court to appoint a Curator Bonis to look after the financial affairs and assets of the incapacitated person. The Curator Bonis, according to the Department of Justice and Constitutional Development, has the power:
- To receive, take care of, control and administer all the assets
- To carry on/or discontinue, subject to any law which may be applicable, any trade, business or undertaking
- To acquire, whether by purchase or otherwise, any property, movable or immovable, for the benefit of the estate
- To apply any money for the maintenance, support or towards the benefit of the person; to invest or re-invest any funds etc.
Often the Curator Bonis appointed will be a lawyer, rather than a family member, because the duties are onerous and may be too much for someone who is also providing personal care to their loved one and in all likelihood holding down a job and looking after their own family at the same time.
The Curator Bonis is accountable to the Master of the High Court and is required to submit annual accounts, detailing all expenditure and providing all receipts on behalf of their charge. The system guarantees transparency but is a lot of work. A Curator Bonis is paid, but the statutory provision is modest. They may receive:
- An annual fee of 6% on gross revenue accrued from assets (such as dividends, pension, interest and rental income). If the assets are non-income earning, e.g. residential property or gold, jewellery, etc., the Curator Bonis must apply to the court for a special fee
- A one-off fee of 2% of capital on the date the curatorship ends (when the person dies or is released from curatorship)
Curator Ad Personam
A Curator Bonis is responsible for the property of the person they represent. As such, they can make decisions about assets and financial matters, as detailed above. If there are personal welfare or health issues to decide, such as whether or not the individual should undergo surgery, or move into a frail care facility, a Curator Ad Personam must be appointed. The process for this is less formal than for a Curator Bonis, and may be terminated should the ill person recover (though in the case of dementia this is unlikely). The Curator Ad Personam is often a family member, as they are more likely to have intimate knowledge of the person’s wishes, such as whether or not extraordinary measures should be taken.
The process – Curator Ad Litem
There is a third type of curator – the Curator Ad Litem. This is a legal role and the person performing this function may never meet the individual requiring curatorship. Let’s say you believe your mother can no longer make decisions for herself, and you feel she needs a Curator Bonis, and possibly a Curator Ad Personam. How do you make this happen? As we’ve suggested, the process is exhaustive. Firstly, you apply to the court for an order declaring your mother to be of unsound mind and incapable of managing her affairs. In order to bring this application, you must secure supporting affidavits from two medical practitioners, one of whom must be an “alienist”, in other words a registered psychiatrist or neurologist.
The court will then appoint a Curator Ad Litem. This is usually an Advocate, appointed by the applicant (you) or your attorney. The Curator Ad Litem’s job is to represent your mother and investigate the facts. They will report their findings to the Court and the Master of the High Court.
Only after that will the Curator Bonis and/or Curator Ad Personam be appointed, on the recommendations of the Curator Ad Litem. The appointment can only be made by the Master of the High Court, who will also write a report, either accepting or rejecting the outcome of the Curator Ad Litem’s report. The total cost of the process is c.R20 000 – R40 000.
The alternative – an administrator
Where the incapacitated person has very modest assets, the cost of appointing and then supporting a Curator Bonis may not be economically viable. If your mother’s assets are R200 000 or less, and/or her annual income is R24 000 or less, you may apply to the Master of the High Court to appoint an administrator in terms of the Mental Health Care Act. The cost of varies but is c. R2 500.
However, administration is only permitted, in terms of the Mental Health Care Act, for “a mentally ill person or a person with severe or profound intellectual disability”. This excludes anyone unable to manage their affairs due to physical handicap, serious illness or old age, unless they are suffering from dementia. If their decision-making ability is impaired but is not defined as mental illness or intellectual disability in terms of the Mental Health Care Act, the Court will not sanction administration.
Protect your loved ones!
We all want to think that our family members are safe and free from risk of harm or abuse, whether emotional or physical. Sadly, we only have to listen to the news to know that older people are often neglected or exploited. The modern nuclear family means that we are not always around to check in on elderly parents every day. And it can happen that a fortune-seeker steps into the breach and then proceeds to take advantage of diminished faculties, coercing the frail person into changing a will or even marrying them, as in the case mentioned above.
If your family member is not mentally stable and you fear they are being financially or physically abused, you need legal representation. Cape Town lawyers SDLAW can help you secure the appropriate curatorship for your loved one and protect them from exploitation. We can also make sure their will is in order and the estate is protected.
Contact us for more information
Cape Town attorneys SDLAW can guide and support you through the process of appointing a Curator Bonis or Curator Ad Personam. We know this is a difficult time for a family and will handle your case with sensitivity and the utmost discretion. If you would like to discuss your situation in confidence, on 086 099 5146 or email firstname.lastname@example.org.