Author name: Eileen

Introduction The thought can be quite stressful and overwhelming, but it shouldn’t be ignored. When a family member, someone close to you or even yourself becomes ill or unable to manage their own affairs due to any mental or physical impairment, what will happen? Who will act on their behalf? What is the process to ensure that the best interests of said person will be taken care of, especially in legal proceedings or regarding finances? The answer to this is: curators! I will briefly explain two types of curators, mainly a curator bonis and a curator ad litem. Any interested person may apply for the application of a curator bonis or curator ad litem, they can also apply to have the curatorship set aside. The main differences between a curator bonis and curator ad litem Firstly, a curator bonis can be appointed to someone who is mentally ill, physically incapacitated or an interdicted prodigal (a person who is mentally sane but acts recklessly especially with spending of money). It should be noted that the prodigal themselves can also apply for the appointment of a curator bonis. A curator bonis is appointed by The High Court only once they have decided that the person concerned is in fact unable to manage their own affairs independently. The main role of a curator bonis is to administer and handle the immovable property (such as a house), assets and business of someone under such curatorship. The curator therefore manages the affairs of the above people on their behalf, which may be personal affairs such as finance. Some of the main functions of the curator bonis include the management of the financial support of the person under curatorship, buying property on their behalf, managing their business affairs, and taking care of their assets in a responsible manner. Secondly, a curator ad litem can be appointed not only to mentally or physically incapacitated people or interdicted prodigals, but also to minors. However, the main difference here is that this type of curator does not have the power to administer the previously mentioned affairs of the person under curatorship such as managing their business affairs  or any of their assets, but merely oversees and represents/acts on behalf of the person in legal proceedings and once the legal proceedings (eg, a court case) are completed, then they are no longer curator. They are usually only appointed for such specific purposes, so their power as curator is often shorter in duration. How does a curator get appointed to someone? To ensure credibility and ethical fairness, there are specific steps to take to have a curator appointed to someone. The reason for this is because when under curatorship, a person’s rights to do certain things are limited such as the right to appear in court or manage their own finances. In South Africa, we have something called ‘High Court Uniform Rules’ or ‘The Uniformed Rules of The High Court’. Rule 57 of these rules states how the application for the appointment of a curator bonis works. Stated here is that anyone who is interested in having someone declared as unable to manage their own affairs, must make an application to the High Court in their area. This application is called an ‘Ex Parte Application’.  In this application, reasons must be given why the person should be declared as unable to manage their own affairs, a description of their health (mental or physical) as well as facts to prove these claims, such as medical evidence or reports. An affidavit must be given by a medical practitioner and by someone who is close to the person who is to be put under curatorship, such as a family member. In an application for the appointment of a curator, suggestions must be stated as to who should be appointed if successful, this will usually be an attorney or advocate. As stated earlier, a curator ad litem can be appointed to act one someone’s behalf during legal proceedings, this includes acting on behalf of minors. In the case of a minor, the application for curator ad litem can be brought by any interested party or even the minor themselves if they are old enough to understand the situation and implications of it. An application for the appointment of a curator ad litem for a minor, must include the following: the age and gender of the minor, relationship between the minor and applicant as well as the name and address of the suggested person to be appointed as curator. The suggested person must give a sworn statement agreeing to the suggestion to be a curator. Notice of such an application must be given to the person who the minor has a claim against and they may reject it. The Court will appoint a curator ad litem if the minor has no parents or guardians, if they are not found, unable to act on the minor’s behalf due to being in an accident or due to conflicting interests such as when a minor has a lawsuit against their own parents or guardians.  The application for the appointment of a curator ad litem is the same as that of a curator bonis as it is also an ‘Ex Parte Application’ as mentioned above. Notice to a Magistrate’s Court can also be given for the appointment of this type of curator. An advocate of the High Court who has no conflicting interests in the case or an attorney can be appointed as curator. Conclusion As you can see, curators are appointed to serve the interests of those who may be in a vulnerable situation when it comes to managing their own affairs or acting in legal proceedings. There are specific requirements to apply for a curator to be appointed to someone and one of these is the ‘Ex Parte Application’ which is made by any interested person. This process isn’t taken lightly and is meant to protect the rights of vulnerable people when it comes to the above