Did you know that a Power of Attorney lapses if your parent or family member you have been assisting in his or her affairs becomes mentally incapacitated due to dementia, a stroke, mental illness or incapacitated relating to ageing in general?

We will be able to assist you in deciding the best option to assist such a person in the appointment of an Administrator or Curator Bonis. We have an expert team who will guide you through the different processes to ensure the protection of your loved one’s property and investments. Instructions accepted countrywide.

Curator Bonis is enforced when someone who is struggling to manage their own administrative affairs, including finances, or requires assistance as a result of old age or illness. A power of attorney is handed to someone of his/her choice who is now able to manage their affairs on his/her behalf. However, there are limitations to the power of attorney. In South Africa, a power of attorney is only enforceable if the person who granted it is fully capable of understanding what they are doing.

Legally, the person to whom a power of attorney is granted, cannot have more power than the principal (the person granting the power). If you make decisions in the case of an incapacitated person without seeking their permission, you are considered to have committed fraud and if you continue to use the Power of Attorney, you might even face legal action. Curatorship’s, a feature of South African law that is based on Roman-Dutch law, make an allowance for these situations.

Curator Bonis

The court may appoint a Curator Bonis to manage the incapacitated person's financial affairs and assets under Rule 57 of the Uniform Rules of Court. According to the Department of Justice and Constitutional Development, the Curator Bonis has the following authority:

•        To receive, take care of, control and administer all assets and to carry on or discontinue, any trade, business or undertaking, subject to applicable laws.

•        To acquire, by purchase or otherwise, property, movable or immovable, for the benefit of the estate.

•        To allocate funds toward the maintenance, support or towards the benefit of the person, and to invest or re-invest any funds etc.

The duties of the Curator Bonis may be difficult for someone who also has other duties like caring for their loved one as well as their own personal responsibilities. Accordingly, it is often managed by a lawyer instead.

The Curator Bonis is answerable to the Master of the High Court and is obliged to present annual accounts, outlining all expenditures and providing all receipts on behalf of their charge. Transparency is guaranteed by the system, but it requires a lot of work. Compensation may include:

•        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 once-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 Ad Personam must be chosen if decisions on the person's welfare or health are required, such as whether the person should have surgery or relocate into a facility for the elderly.

Curator Ad Litem

This is a legal role and the person fulfilling it might never actually interact with the person who needs curatorship. As we've mentioned, the procedure is drawn out. The Curator Ad Litem's report can only be accepted or rejected by the Master of the High Court, who will also write a report on the matter. The process will cost between R20,000 and R40,000 in total.

The alternative – an administrator

The expense of appointing a Curator Bonis may not be affordable if the incapacitated individual has relatively small assets, for example if assets are R200 000 or less, and annual income is R24 000 or less, you may apply to the Master of the High Court to appoint an administrator. According to the Mental Health Care Act, administration is only allowed for "a mentally ill person or a person with severe or profound intellectual disability" .

You need legal counsel if a member of your family is not mentally stable, and you suspect that they are being physically or financially mistreated. Thomson Wilks can assist you in finding the best curatorship option for your loved one so that they are shielded from exploitation.

Contact info@thomsonwilks.co.za  for further information.

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