Under South African law, a curator is anyone who has been appointed by the High Court of South Africa to act on behalf of another person and to safeguard that particular person’s interests.

This could be minors in instances where their legal guardians are absent. Absent in the sense that they have either passed away or are unreasonably withholding consent to legal proceedings that the minor may want to institute. Alternatively, it could be someone with diminished mental capacity. These are individuals who cannot fully appreciate the consequences of their actions, such as minors, people with brain injuries caused by a motor vehicle accident or a stroke; intellectual disabilities; mental illness, Dementia; Alzheimer disease etc., rendering them incapable to administer their own personal or financial affairs.

In South Africa there are typically three legally recognized types of curators:

• Firstly there is a curator for litigation, which is also called a curator ad litem. This type of curator represents a person in legal proceedings. They represent the person even in the court application for the appointment of any of the other types of curators.
• Secondly after a curator ad litem has been appointed it needs to be established whether or not the person can take care of their day to day needs; such as bathing themselves, taking medication properly or purchasing their own groceries. Should the court be satisfied that a person cannot perform these basic tasks a curator ad personam will then be appointed for this purpose.
• Thirdly and in instances where a mentally unsound person or a person with diminished mental capacity cannot take care of their financial needs, then the courts will appoint a curator bonis to protect the financial and proprietary interests of the person.  

A person who is compis mentis (in other words, a person with full mental capacity), but who is incapable of managing his own financial affairs may be declared a prodigal. In such an instance, a curator bonis may be appointed
without the need for a curator ad litem. This is particularly useful in awards for damages where the amount awarded needs to be protected, but the person is of sound mind.

How does the Curator get appointed?

According to Rule 57 of the High Court rules there needs to be two medical reports from recognized medical practitioners in South Africa that inform the court of the person’s condition and the conclusions made in respect of their respective limitations, as expressed above. One of the reports has to, where practicable, be compiled by a psychiatrist.

An interested person or a legal guardian, if the person is a minor, has to bring an application to court on an ex parte basis, requesting the court to appoint this curator ad litem and the further relevant type of curator thereafter. In the application the applicant will, amongst other things, have to convince the court that they have the legal standing to bring the application.

The application is a two stage process that can take anywhere between six to twelve months to be finalised and costs anywhere between R50 000.00 to R80 000.00 in legal fees and disbursements. These costs can be funded through the estate of the person who is the subject of the appointment.

The curator bonis is obliged to lodge a yearly administration account with the Master, which sets out the income, expenses and value of the capital assets of the estate. The Master scrutinises these accounts to verify the income, expenses and capital assets and to ensure that if security is provided it is amended according to the value of the estate.

The fees of a curator bonis  are prescribed in the Administration of Estates Act. They are 6% on the annual income of the estate and 2% on the value of the capital assets of the estate at termination of the Curatorship. The Master may however reduce, disallow or increase the fees if special reasons exist. 

It is important to remember that in South Africa there is no legal enduring power of attorney. Therefore if a person has given a family member or a friend a power of attorney to act on his or her behalf, this power of attorney will fall away if the person’s mental capacity diminishes to a point whereby they cannot appreciate the consequences of their actions. Should this person continue to act in terms of the power of attorney, their actions can amount to fraud.

In conclusion…

The best interests of the person, minor or prodigal is what should be uppermost in the mind of any curator. A relationship of great trust is created and it is of the utmost importance that the curator does not abuse his/her position. It is furthermore vital that the curator remain independent and fiercely protect his client’s rights, free from any fear of reprisal, and not hide behind instructions.

Our Estate Planning department offers comprehensive advice on all aspects of Estates, the formation of Inter Vivos and Will Trusts, Trust Management, the appointment of Curatorships, administration of Deceased Estates and the drafting of Wills.

Lutho Gwanya | Candidate Attorney