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Understanding Curatorship in South Africa: What It Is and Who It Is For

Part 1 of a Series on Curatorship

 

Introduction

Consider the following scenarios. A parent is or grandparent begins to show the effects of dementia, gradually losing the capacity to manage a lifetime’s savings. A family member is diagnosed with a severe mental illness that leaves him or her unable to attend to his or her own affairs. In both of these, or similar, situations, family members are often left asking the same question: what now?

South African law address that question through a legal mechanism known as curatorship. This article, the first in a series, explains what curatorship means, what legal capacity is and how it may be affected by conditions such as those described above, what must happen once capacity is genuinely diminished, how an application for curatorship works, and who may be appointed to act in this role.

What Does Curatorship Mean?

Curatorship is a legal mechanism whereby the High Court appoints a “person”, the curator, to act on behalf of an individual who is no longer able to manage his or her own affairs. It exists to protect individuals whose capacity has been compromised by illness, injury, or disability, while placing the person appointed to act for them under the ongoing supervision of the court and the Master of the High Court.

What Is Legal Capacity, and How Is It Affected?

At the centre of curatorship lies the concept of legal capacity: the ability to understand relevant information, appreciate the consequences of a decision, and act on that understanding when managing one’s own affairs. The law generally presumes that adults possess this capacity. It is only when that presumption no longer holds true that curatorship becomes relevant.
Conditions such as dementia, and various mental illnesses can each affect capacity, though not always in the same way or to the same degree:

Dementia typically brings a progressive decline in memory, reasoning, and judgement, gradually eroding a person’s ability to manage financial and personal affairs, often to the point where he or she is no longer aware that this ability has been lost, whereas mental illness can impair capacity either on an ongoing basis or during acute episodes, depending on the nature and severity of the condition.

Capacity is not simply present or absent; it exists on a spectrum, and a person may retain the ability to make some decisions while losing the ability to make others. It is for this reason that the law requires proper medical and psychiatric evidence before concluding that a person’s capacity has been sufficiently diminished to warrant intervention.

When Capacity Is Diminished: What Must Happen

Once a person’s capacity has genuinely been compromised, informal arrangements are generally no longer sufficient. A power of attorney, for instance, is only valid for as long as the person granting it retains capacity; once that capacity is lost, the power of attorney falls away, leaving no one with legal authority to act. Guardianship, in turn, applies to minor children and does not extend to adults. In more modest cases, the appointment of an administrator under the Mental Health Care Act may offer a simpler and less costly solution.

Where the affairs, assets, or decisions involved are more substantial or more complex, the appropriate legal response is an application for curatorship. This places a person’s affairs in the hands of a curator who is formally appointed by, and accountable to, the court, rather than relying on informal or lapsed arrangements.

How Does the Application Process Work?

A curatorship application is brought in the High Court under Rule 57 of the Uniform Rules of Court, usually by a family member or another interested party. It generally begins with a founding affidavit setting out the person’s circumstances and explaining why curatorship is necessary. The application must be supported by medical and psychiatric evidence confirming the nature and extent of the person’s incapacity. The court may also appoint a curator ad litem to investigate the matter independently and report back, usually with recommendations on whether a curator bonis or curator ad personam should be appointed and who should serve in that role.

Due to the nature of the relief sought, applications are generally brought on an ex parte basis, which is an application brought before the court only and not made against any other party, effectively only asking the court for certain relief. The court will only grant an order once it is satisfied, on the evidence before it, that the person concerned is genuinely unable to manage his or her own affairs.

Who Qualifies to Be a Curator, and What Are Their Functions?

South African law recognises three distinct types of curators. A court may appoint one or more of them in respect of the same individual, depending on what that person’s circumstances require.

Curator ad Litem

A curator ad litem is generally a senior attorney or advocate appointed to represent the individual’s interests in the curatorship proceedings themselves. Their function is to investigate the person’s circumstances independently and report to the court, typically recommending whether further appointments are required. A curator ad litem has no authority over the individual’s property or personal affairs beyond these proceedings.

Curator Bonis

A curator bonis is appointed to manage the financial affairs and property of the individual concerned. Suitable candidates are typically professionals such as attorneys, accountants, or trust practitioners with the relevant financial and administrative experience. Their functions include administering the individual’s estate, managing business affairs, arranging maintenance and support, and, within the limits set by the court order, acquiring property on the individual’s behalf. A curator bonis is accountable to the Master of the High Court and must submit regular reports accounting for the estate’s assets, income, and expenditure.

Curator ad Personam

A curator ad personam is appointed to make decisions concerning the personal welfare of the individual, including healthcare, living arrangements, and daily care. Given the direct effect this role has on personal autonomy, courts grant this appointment cautiously, and typically only to a person with a close and trusted relationship to the individual concerned, such as a family member. Authority is limited to what the specific circumstances genuinely require.

Conclusion

Curatorship exists to protect individuals whose capacity has been compromised, while ensuring meaningful oversight of those appointed to act on their behalf. In the next article in this series, we consider what happens after a curator is appointed, the curator’s ongoing duties, the oversight exercised by the Master of the High Court, and how a curatorship may be varied or brought to an end.