Mental health conditions are increasing worldwide. According to the World Health Organisation, 1 in every 8 people live with a mental disorder. In recent years, there has been an increase in the awareness of the vulnerabilities of mentally incapacitated individuals, including those diagnosed with Dementia or Alzheimer’s disease. This has led to a corresponding increase in the number of curators appointed by the Court, with the aim of protecting the interests of such individuals.
The role of a curator
A curator is defined as a person who is appointed by a Court with the intent of managing inter alia the property and financial affairs of another person, who is not capable of managing their affairs on their own. The appointment of a curator is a serious step and should only be considered as a last resort once all other less restrictive remedies have been exhausted.
The appointed curator is a natural person, who can be a trusted relative of the patient or someone of a legal nature and background who is independent and able to make decisions in the interest of the patient. The role of a curator, depending on the type of curator that is appointed, includes, but is not limited to:
- Collecting information about the mentally incapacitated individual’s assets and liabilities;
- Taking control of the mentally incapacitated individual’s property;
- Managing the mentally incapacitated individual’s financial affairs;
- Acting on behalf of the mentally incapacitated individual in contractual and other dealings;
- Bringing or defending legal proceedings on behalf of the mentally incapacitated individual; and
- Making decisions about the care and daily needs of the mentally incapacitated individual.
Appointing a curator
A High Court is the only Court authorised to order the appointment of a curator, and will appoint a curator in terms of the provisions of Rule 57 of the Uniform Rules of Court. The application must be made by someone interested in the welfare of the mentally incapacitated individual, such as a family member, friend, carer or doctor. There are three types of curators for which a person can apply:
- Curator ad litem, which is a curator that is appointed to litigate on behalf of the patient during legal proceedings;
- Curator ad personae, which is a curator that is appointed to oversee the patient’s daily living needs; and
- Curator Bonis, which is a curator that is appointed to protect the patient’s property and financial interests.
There are strict requirements that need to be met when bringing an application of this nature, and a Court will make an order appointing a curator if the Court is satisfied that:
- The mental capacity of the proposed patient has been impaired or lost;
- As a result of that impairment or loss, it would be detrimental to the welfare of the proposed patient for them to manage their own property or financial affairs; and
- An order appointing a curator would likely benefit the proposed patient.
Although a curator has wide-ranging powers, they must always act in the best interests of the patient. The Mental Health Care Act (2002) protects the rights of mental health care users in South Africa and ensures that they receive humane treatment. The Act also gives mental health care users the right to dignity, privacy, and freedom from exploitation. It also gives them the right to information about their diagnosis, prognosis, and treatment options; and allows them to refuse treatment if they so choose.
The role of curators in relation to mental incapacity is an important one which has come into sharp focus in recent years. Courts often appoint curators to take control of an incapacitated individual’s property and financial affairs and to make decisions about their care and daily needs. If you believe someone you know may benefit from such an appointment, book an appointment with our legal team to discuss your options.