Curatorship Attorneys in Cape Town
When an adult becomes unable to manage their own affairs due to mental illness, a cognitive condition such as dementia, an intellectual disability, or serious physical incapacity, a legal mechanism is needed to ensure that their financial and personal interests continue to be protected. In South Africa, that mechanism is curatorship. A curator is a person appointed by the High Court to act on behalf of an adult who lacks the legal capacity to act for themselves.
Curatorship applications involve a detailed legal process and require medical evidence, a report from the Master of the High Court, and a High Court order. Legal Services Cape Town assists families in navigating this process, advising on the type of curatorship required, gathering the evidence needed, and bringing the application to court efficiently and with the care these sensitive matters deserve.
Curatorship is one of the family law areas our partner attorneys cover in our broader family law services in Cape Town, which covers divorce, custody disputes, maintenance, antenuptial agreements, and protection orders.
Need advice on a curatorship matter? Contact our team today.
Understanding Curatorship in South Africa
What is a Curator?
A curator is a person appointed by the High Court under the Mental Health Care Act 17 of 2002 and the common law to manage the affairs of an adult who is unable to do so themselves. The court appoints a curator only where the person genuinely lacks legal capacity, meaning they are unable to understand the nature and consequences of their decisions. The appointment of a curator does not remove the dignity or humanity of the person concerned. It is a protective measure designed to ensure that their affairs are managed in their best interests.
Curator Bonis
A curator bonis is appointed to manage the financial and property affairs of a person who lacks the capacity to do so themselves. The curator bonis has authority to manage the person’s assets, pay their debts, receive income on their behalf, invest their funds, and generally administer their financial affairs under the supervision of the Master of the High Court. A curator bonis must account to the Master annually and must obtain approval for certain significant transactions.
Curator ad Litem
A curator ad litem is appointed to represent a person in legal proceedings where that person is unable to represent themselves due to incapacity. The curator ad litem acts on behalf of the incapacitated person in those proceedings only and does not have ongoing authority to manage their financial affairs. In some cases, both a curator bonis and a curator ad litem are appointed, each fulfilling a distinct role.
Curator Personae
A curator personae is appointed to manage the personal affairs of an incapacitated person, including decisions about their care, accommodation, and medical treatment. This type of curatorship is less common than curator bonis and is usually sought where the person’s medical and personal circumstances require active management by a responsible third party.
When is Curatorship Necessary?
Curatorship is necessary where an adult lacks the legal capacity to manage their own affairs and where no other adequate legal mechanism exists to protect their interests. Common circumstances in which families seek curatorship include dementia or Alzheimer’s disease at an advanced stage, serious mental illness that impairs decision-making capacity, intellectual disability where no guardian has been appointed, traumatic brain injury resulting in permanent cognitive impairment, and other conditions that permanently or severely affect the person’s ability to understand and manage their affairs.
It is important to note that curatorship is not appropriate for adults who have capacity but who make decisions that their family disagrees with. The test for curatorship is legal incapacity, not poor judgment. Where a person has capacity, a general or special power of attorney may be a more appropriate and less intrusive mechanism for authorising another person to act on their behalf.
The Curatorship Application Process
Medical Evidence
A curatorship application must be supported by medical evidence of the person’s incapacity, typically in the form of reports from one or more medical practitioners who have examined the person. The medical evidence must establish that the person lacks the legal capacity to manage their own affairs and must describe the nature and extent of the incapacity. The attorney will advise families on what medical evidence is required and how it should be presented in the application.
The Master of the High Court
The application for curatorship is brought in the High Court and is referred to the Master of the High Court, who investigates the application and makes recommendations to the court. The Master considers the suitability of the proposed curator, the adequacy of the medical evidence, and the proposed terms of the curatorship. They prepare applications in a form that satisfies the Master’s requirements and manage the interaction with the Master’s office throughout the process.
The High Court Order
The curatorship order is granted by the High Court and sets out the powers and duties of the curator, the assets under the curator’s administration, and the reporting obligations to which the curator is subject. Once the order is granted, the curator is authorised to act on behalf of the incapacitated person within the terms of the order. They assist clients in understanding the terms of the order and their obligations as curator once appointed.
Ongoing Obligations of the Curator
A curator bonis is subject to the ongoing supervision of the Master of the High Court and must submit annual accounts showing how the incapacitated person’s assets have been managed. Certain transactions require the prior approval of the Master. They advise curators on their reporting obligations and assist in preparing the annual accounts and obtaining approval for transactions where required.
Curatorship and Estate Planning
Families dealing with curatorship often need to consider how the incapacitated person’s estate will be administered after their death. Where the incapacitated person has a valid will, the executor appointed in that will administer the estate. Where no valid will exists, the estate falls into intestacy. The attorney will advise families on the intersection between curatorship and estate administration and assist in reviewing or updating estate planning arrangements where appropriate.
For families who also need to address estate planning, wills, or the administration of a deceased estate, our deceased estates and estate planning team provides coordinated support alongside our curatorship practice.
