The difference between the two applications, other than the obvious cost implication, is that the common law (High Court) application is applicable to any situation where the person becomes incapable of managing his/her own affairs, whereas the administrator application (through the office of the Master) can only be utilized if the person has a mental illness or a severe or profound disability, (for example dementia or Alzheimer’s disease).
Appointing an administrator in terms of Section 60 of the Mental Health Care Act
It is often misunderstood that one of the requirements for an Administrator to be appointed is that the patient’s assets should not exceed R200,000-00 in value.
There is a misconception that the Master will only deal with estates where the value of the patient’s assets is below R200,000 or the patient’s income is below R24,000 per annum. The Master’s jurisdiction extends to estates that exceed the prescribed values, but in these cases the Master must first appoint an investigator, who will perform almost the same function as the curator ad litem in the High Court Application, in terms of Section 60(5) of the Act. It is then recommended that one proceeds with the common law (High Court) application as it will be less time consuming than the former.
In a recent application lodged at the Master’s office in Johannesburg, the function of investigating the application and reporting to the Master was outsourced by the Master’s office to a practising attorney. The fee charged by the investigator, which may not exceed R15,000, is not covered by the Master’s office – it must be paid by the estate of the incapacitated person or the applicant.
The application, in brief summary, needs to be-
- In writing, under oath
- Must set out the relationship of the applicant to the patient
- Must include all available mental health related medical certificates or reports relevant to the mental health status of the person and to his/her incapability to manage her own affairs
- Must state the estimated property value and annual income of the person and must provide contact details and particulars of any one who may provide further information relating to the mental health status of that person
In addition, certain prescribed forms must be submitted-
Curator BonisRule 57 of the Uniform Rules of Court allows the court to appoint a
Curator Bonis to look after the financial affairs and assets of the incapacitated person. The Curator Bonis has the power:
- To receive, take care of, control and administer all the assets
- To carry on/or discontinue, subject to any law which may be applicable, any trade, business or undertaking
- To acquire, whether by purchase or otherwise, any property, movable or immovable, for the benefit of the estate
- To apply any money for the maintenance, support or towards the benefit of the person; to invest or re-invest any funds etc.
Often the Curator Bonis appointed will be an attorney or a fiduciary specialist, rather than a family member, because the duties are onerous and may be too much for someone who is also providing personal care to their loved one and in all likelihood holding down a job and looking after their own family at the same time. Should a layperson be desirous to act and be appointed as Curator Bonis, they will have to furnish security to the Master of the High Court (an insurance that makes provision specifically for the appointment of a curator bonis).
The Curator Bonis is accountable to the Master of the High Court and is required to submit annual accounts, detailing all expenditure and providing all receipts on behalf of their charge. The system guarantees transparency but is a lot of work.
An application must be made to court for an order declaring the patient to be of unsound mind and incapable of managing his affairs. In order to bring this application, you must secure supporting affidavits from two medical practitioners, one of whom must be an “alienist”, in other words a registered psychiatrist or neurologist. The other medical practitioner may be a GP.
The court will then appoint a Curator Ad Litem. This is usually an Advocate, appointed by the applicant (you) or your attorney. The Curator Ad Litem’s job is to represent the patient and investigate the facts. They will report their findings to the Court and the Master of the High Court.
Only after that will the Curator Bonis be appointed, on the recommendations of the Curator Ad Litem. The appointment can only be made by the Master of the High Court, who will also write a report, either accepting or rejecting the outcome of the Curator Ad Litem’s report.
A most notable difference between an Administrator and that of Curator Bonis lies in the fact that an administrator may not alienate or mortgage any immovable property of the person for whom he or she is appointed unless authorised to do so by court order or consent of the relevant Master of the court.