As people grow older, they may be debilitated by mental or physical ailments, which leave them unable to manage their finances, and sometimes even daily affairs. These people who suffer from diminished capacity are highly vulnerable to being taken advantage of by friends, family or scammers.
In South Africa, the law offers three mechanisms to protect people of diminished capacity in such circumstances. However, it is essential to remember that this mandate is only valid for as long as the physically or mentally incapacitated person is alive.
The three mechanisms relate to appointing either a Curator Bonis, an Administrator or setting up a Trust. In this article, we are going to examine the difference between a Curator Bonis and an Administrator.
What is a Curator Bonis?
A Curator Bonis is a person appointed by a Court to manage the finances, property, or estate of another person who cannot do so because of mental or physical incapacity. A Curator Bonis is also used to protect the interest of minor children in marital disputes.
In order for a Curator Bonis to be appointed, an application must be brought before the High Court declaring the individual incapable of managing their own affairs. There are three types of Curatorships:
- Curator ad litem, who is a Curator who litigates on behalf of the patient.
- Curator ad personam, who is a Curator who oversees the patient’s daily living needs.
- Curator Bonis who protects the patient’s property and financial interests.
The cost of bringing a Curatorship to court is very high (between R50,000 and R100,000 at the time of writing). In addition, the application requires medical reports from a neurologist and a psychiatrist, which adds to the costs.
In terms of Rule 57 of the Uniform Rules of Court, the High Court is then required to make an order declaring the patient of unsound mind and incapable of managing their own affairs.
While the Curator Bonis may have been approved by the Master of the Court, they will have limited powers to make investments, which can affect the estate’s assets. Due to the fact that a Curator Bonis is not well remunerated, it is difficult to find candidates who are capable and understand the seriousness of their role in assisting the incapacitated person.
What is an Administrator?
The Master of the High Court may also appoint an Administrator to manage the property of a person who has been diagnosed as mentally ill or who has such a severe disability that they are unable to manage their affairs.
This procedure is far less costly than having a Curator Bonis appointed. However, one of the requirements for an Administrator to be appointed is that the patient’s assets do not exceed R200,000 in value. If the individual’s assets exceed this amount and their income is above R24 000 per year, the Master of the Court will insist on a further investigation before an Administrator is appointed. This process may cost up to R15,000.
Any person over the age of 18 may make an application, and the patient must be diagnosed by at least two independent medical or mental health practitioners. Both medical certificates, each no older than seven days, must be supplied on the application, together with:
- Reasons why the applicant is not the spouse or next of kin – if they are not.
- Steps that were taken to establish the next of kin or spouse.
- A statement regarding the value of the property and income of the patient
- Proof that a copy of the application has been submitted to the mentally incapacitated patient.
What Other Differences are There Between a Curator Bonis and an Administrator?
While the Curator Bonis is appointed by order of the High Court and set up in terms of common law, an Administrator is appointed by the Master of the High Court in terms of Section 63(3) of the Mental Health Act and set up in terms of the Mental Health Act.
A Curator Bonis may be used for an individual who is either mentally or physically incapacitated, while an Administrator may only be appointed where the individual is mentally incapacitated.
It is important to note that, in South Africa, if a patient’s mental capacity deteriorates below the legal threshold, that the Curatorship or Administration role will fall away. If the nominated Curator or Administrator continues to act on the patient’s behalf under these circumstances, their actions are tantamount to fraud. This can obviously leave some families in a challenging position.
In conclusion, it is always best to consult an attorney who can offer comprehensive advice on all aspects of Estates, Wills, Trusts and the administration of deceased estates to ensure that an appropriate solution is found to manage the affairs of someone who is mentally or physically incapacitated.
AED Attorneys demonstrates empathy through its tackling of bureaucracy and red tape that causes delays and stress. We have all the contacts and information necessary to ensure a relatively painless process in all legal matters.
AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.