CURATORSHIPS AND ADMINISTRATION… - Cape Law Society

Motivation
• General rule is that persons are presumed sane and legally
competent to conduct their financial affairs, unless contrary proved
• People lacking mental capacity are unable to make decisions on
their own with regards to their welfare and financial affairs
• Both commons law and statutory law addresses the issue and
provide procedures to authorise other people to make legal
decisions on behalf of such persons
• Examples: Mentally disabled, illnesses related to old age, reception
order, prodigals

Current Position
Common Law
• Not impacted on by the Mental
Health Care Act 17 of 2002
• High Court may still appoint a
curator-ad-litem, curator-bonis
or curator-ad-personae
Statutory position
• Mental Health Care Act 17 of
2002
• Effective 15/12/2004
• Replaced Mental Health Act 18
of 1973
• Application to the High Court
not required
• Master may appoint an
administrator (akin to curator)
on application

Common Law
• Application to the High Court in whose jurisdiction mentally ill is
domiciled or owns property
• Application on Notice of Motion to mentally ill person and Master,
and if owning fixed property, to Registrar of Deeds
• Procedure set out Rule 57 of High Court Uniform Rules
• Normally two recent medical reports by medical doctors, one whom
shall, where practicable, a psychiatrist
• Court will appoint Curator-ad-Litem (usually advocate), to
investigate matter and report to Court and Master

• Master files report to Court, making recommendations
• Court issues order as it may deems necessary
• Master appoints Curator Bonis upon further receipt of:
• Court order
• Inventory
• Security by Curator Bonis, unless exempted
• Acceptance-form by Curator

Mental Health Act 17 of 2002
• No High Court application involved
• Master appoints an Administrator(Section 59)
• Procedure in terms of Section 60 or 61 to be followed:

Section 60
• Application made directly to Master:
• Form MHCA 39 (Regulation 51) to the Master, sworn to under
oath or solemn affirmation
• Section 60(2)(a-f)sets out further requirements in detail
• Mentally ill person must be notified, and proof submitted to
Master
• Must recommend suitable person as Administrator (Form MHCA
39)

• If value of estate is less than R 200 000, or annual income less than R 24
000.00, then Master may:
• appoint an Administrator
• decline to appoint an administrator
• cause an investigation to be conducted, if certain allegation require
confirmation or further information is required.

Investigation
• If value of estate is more than R 200 000, or annual income more than R 24 000.00, then
Master must cause an investigation to be conducted
• The investigator (Rule 57 – Advocate or Attorney)
• must confirm all allegations and facts contained in the application and call on that person or his
or her legal representative to respond to the application
• must submit a report on his or her findings to the Master
• must finalise the investigation with 60 days of being instituted, unless the Master extends such
period
• may summon any person to appear before him or her to provide information and documents
relevant to the application or that person
• may enquire into the financial position of that person

Master’s decision
• Master must, within 14 days after considering the
investigator’s report:
• appoint an administrator, or
• decline to appoint an administrator, or
• refer the matter to High Court Judge in chambers

• The Master must, in writing, inform the applicant and the
mentally ill person or person with severe or profound
intellectual disability of his or her decision and the
reasons thereof
• Appeal within 30 days of the written notice of Master’s
decision, by submitting a written notice of appeal to a
High Court Judge in chambers and a copy to the Master
setting out the grounds of the appeal

Section 61
• If a High Court, when conducting an enquiry:
• in terms of this Act or
• during any legal proceeding,
has reason to believe that a person in respect of whom an enquiry or legal proceeding is held
or conducted may be incapable of managing his or her property, it may conduct an
investigation into the mental health status of that person and his or her capacity to manage
his or her property
• If the Court finds that the mental health status of the person concerned is of such a nature
that such person is incapable of managing his or her property, it may:
• recommend that an administrator be appointed in respect of that person; and
• notify that person and a Master of a High Court of the finding and recommendation, and the
reasons thereof

Master’s position under new Act
•If value more than R
200k or annual
income more than R
24k
• If value more than
R 200k or annual
income more than R
24k)
• If Master refers
matter
Appointment
Decision
Refusal
Optional
referral by
Master

Appointment
• Valid from date of issue of Letters by Master, not order of Court
• No powers prior to appointment by Master
• Appointment in form MHCA 43 (Regulation 53)
• Administrator and Curator treated as similar by Master
• Master in Cape Town usually dilutes obligations of Administrator visà-vis
obligations of Curator, such as the lodgment of Inventory of
placement of Section 75(Administration of Estates Act 66 of 1965)
notice

• ‘Administrator’ is defined as:
‘a person appointed in terms of section 59 to care for and administer the property
of a mentally ill person and where applicable includes an interim administrator’
• Any person may be appointed an Administrator
• Security must be furnished, unless exempted or reduced by the Master (Section
63(1))
• If recommendation by Judge in Chambers, Master must cause an investigation to
be conducted to determine a suitable candidate to be appointed as administrator
for the person concerned and appoint the administrator
• Cost of application borne by mental ill person’s estate, OR applicant if trivial or
vexatious

Powers
• An administrator:
• may take care of and administer the property and perform all functions incidental thereto,
• may carry on any business or undertaking, subject to any other law
• may not perform act considered too personal (eg. Parental consent to marry and Divorce)
• may not alienate or mortgage any immovable property unless authorised to do so by a court
order OR consent of Master
• may not allow his or her spouse, child, parent, partner, associate or agent may not purchase or
otherwise acquire any property of that person unless:
• Master consents, or
• the purchase or acquisition was, in writing, legally authorised by that person before that administrator
was appointed

Duties
• An administrator must, immediately after his or her appointment:
• pay all moneys received to the Master, unless:
• the Master directs otherwise (usually in appointment conditions)
• a legal document of that person made before the administrator was
appointed, authorises otherwise, or
• the money is required to:
• repay debt
• pay expenses relating to the safe custody of the property of that person
• maintain or educate that person or his or her dependants
• pay for the current expenditure of the business or undertaking of the person.

Rights of Mentally Ill
Still has capacity to act
whenever he or she is
mentally capable of doing
so
per De Villiers JP in Pienaar v
Pienaar’s Curator 1930 OPD
171 at 174-175

Administration of Estates Act 66 of
1965
• Sections 75, 78, 79, 83, 84 and 85 of Administration of Estates Act 66 of 1965
applies to Administrator and Curator:
• Section 75 – notice in Government Gazette
• Section 78 – inventory to Master
• Section 79 – caveat over immovable property
• Section 83 – file annual account with Master
• Section 84 – entitled to remuneration (6% on income and 1% on capital on termination)
• Section 85 – Section 24 - reduction of security
Section 26 - obligation to take possession and control of estate
Section 28 - open and keep a bank account
Section 36 - application by Master to Court for order to comply
Section 42(2) - consent by Master to transfer fixed property
Section 46 - failure to pay over monies to Master or in bank account
Section 48 - extension of time to pay debts
Section 49(2) - consent by Master required for Administrator or Curator to buy
property
Section 52 - prohibition against substitution or subrogation
Section 53 - absence from the Republic > 60 days
Section 54 - removal from office by Court or Master
Section 56 - discharge

Account of Administration
• Lodge account with Master
• Within 3 months from the last day of the financial year of estate as determined by
Master
• Prescribed format (Regulation 7):
• Income and Expenses Account (Income Statement)
• Capital Account (Balance Sheet)
• Cash Reconciliation
• Certificate
• Submitted with all original or certified copies of supporting vouchers

Header and Income
TWELFTH CURATOR'S ACCOUNT IN RESPECT OF XXXX, IDENTITY NUMBER XXXX, FOR THE
PERIOD 01 JULY 2008 TO 30 JUNE 2009, IN TERMS OF SECTION 83(1) OF THE ADMINISTRATION OF
ESTATES ACT 66 OF 1965
MASTER'S REFERENCE: XXX
INCOME AND EXPENDITURE ACCOUNT
Income
Interest on call account no. XXX 1 XXX
at Nedbank for the period 01/07/2008 to 30/06/2009
- see Addendum "A"
Sanlam 2 XXX
Dividends (2725 shares at R0.77 per share as at 09 May
2007)
Sanlam
Dividends (2725 shares at R0.98 per share as at 06 May
2009)
3
XXX
R
-

Expenses
Expenditure
Debts and Maintenance charges
Mr. XXX (father of XXX) 5 XXX
Maintenance for the period 01/07/2008 to 30/06/2009
- see Addendum "B"
Sars
- Provisional Tax 6 XXX
- Provisional Tax 7 XXX
City of Cape Town 9 XXX
Rates and taxes for fixed property for the period 01/07/2008 to 30/06/2009
- see Addendum "B"
Santam Insurance Co 10 XXX
Home and motor vehicle insurance for the period 01/07/2006 to 30/06/2007
Administrative expenses
Bank charges 12 XXX
- Current account no. XXX Nedbank
- see Addendum "B"
Postage and Petties 13 XXX
Curator's remuneration (6% on items 1 to 6) 14 R -
V.A.T on curator's remuneration (14%) 15 R -
XXX
Surplus carried over to capital account
XXX
R - R -

Capital Account
CAPITAL ACCOUNT
Immovable property held under Deed of
Transfer no. TXXX dated 03/06/1998,
being no. XXX, Macassar
(Erf XXX, Cape Town at Macassar)
Toyota Corolla, registration no. XXX
NedBank Corporate Saver account no. XXX
Credit balance as at 30/06/2009
NedBank Current account no. XXX
Credit balance as at 30/06/2009
Sanlam shares (2725 shares at R 16.60 per share as at 30 June 2009)
XXX
XXX
XXX
XXX
XXX
R -
Capital as per 11th account
XXX
Add Surplus carried over from Income & Expenditure account
Add Claim for repairs to patient's kitchen paid by Santam
Add Expenditure not yet paid
(Items 20, 21 & 22)
Less Capital loss in value of Sanlam Shares
(From R 21.88 to R 16.60 per share)
Add Capital gain - immovable property
(From R 155 000.00 to R 214 000.00)
Less Capital loss - motor vehicle
(From R 130 271.04 to R 76 800.00)
XXX
XXX
XXX
XXX
XXX
XXX
XXX
XXX
XXX
XXX
XXX
XXX

Cash Reconciliation
CASH RECONCILIATION STATEMENT
Cash in NedBank call account as at 1 July 2008
XXX
Cash in NedBank Current account as at 1 July 2008
XXX
Add: Income as per Income and Expenditure account
XXX
Less: Expenditure as per Income and Expenditure account
XXX
Add: Claim for repairs to patient's kitchen paid by Santam
XXX
Add: Expenditure not yet paid
(Items 20, 21 & 22)
XXX
Add: Policies matured - Momentum
Sanlam
Liberty Life
XXX
XXX
XXX
Cash in NedBank Corp Saver account as at 30 June 2009
XXX
Cash in NedBank Current account as at 30 June 2009
XXX
XXX
XXX

Certificate
CURATOR'S CERTIFICATE
I declare that to the best of my knowledge and belief the account is a true and proper account of my
administration, that it reflects all the property of and debts owing to the person under curatorship and all
income collected and debts, expenses and charges paid by me during the period covered by the account,
and that I am not aware of any disputed right to assets or liabilities.
________________________
xxx
Curator Bonis
Dated at _____________ on this ______ day of _______________ 20__.

Termination of Appointment
• Appointment may be terminated on application by:
• a person in respect of whom the administrator was
appointed
• the Administrator himself
• the person who made an application for the appointment
of the administrator

• Application must be made by way of a written affidavit delivered to Master
• Application must contain:
• the grounds on which the application is based
• all medical certificates or reports relevant to the mental health status of the person concerned
issued subsequent to the appointment of that administrator
• the estimated property value at the time of application
• The Master must, within 14 days of receipt of the application:
• terminate the appointment of the administrator
• decline the application
• refer the matter to a High Court judge in chambers

Prepared and presented by Ockie Visser (visserlegal)
and Nicholas Yeowart (R F J Yeowart Attorneys)