As people get older, more forgetful and frail a practical solution is for a family member, lawyer, accountant or financial advisor (agent) to obtain a general power of attorney from that person (the principal) to manage day-to-day affairs and business on the principal’s behalf. However, when an older person loses his/her mental capacity and can no longer make rational decisions about such matters, a general power of attorney can no longer be acted upon and this is where it may be necessary to bring an application to the High Court for the appointment of a curator.
“The difference between a person acting under a power of attorney and a person acting as a curator through an appointment by the High Court, is that the agent is authorised to act in the name of the principal, whereas the curator acts in his or her own name for the benefit of another – usually an incompetent person,” explains Alana Lee-Slinger, candidate attorney at specialist commercial law firm Gillan & Veldhuizen Inc. Any person who is deemed incapable of managing their own affairs may be placed under curatorship by the High Court.
There are three types of curators that undertake various responsibilities for the principal. Each type has its own application process complete with specific requirements and conditions which need to be met – this varies from affidavits, medical examiner reports to letters of references and such. A curator ad litem appears and litigates on the mentally incapacitated person’s behalf. A curator bonis ensures that the patient’s financial and property interests are protected and a acurator ad personam sees to the daily needs of the patient. “Different persons may be separately appointed as a curator to the person and a curator to the property of the person,” notes Slinger.
Upon the appointment of a curator, he/she must inform the patient of the purpose of the application. The curator must also file their report with the registrar and provide a copy to the person bringing the application or the Applicant. The Applicant must submit the report to the Master of the High Court wherein the Master will comment on the patients means and circumstances. The Master’s report will be furnished to the curator. The matter will then need to be heard by the High Court who will evaluate if an order declaring the person of unsound mind and thus incapable of managing his/her affairs as well as for the appointment of the suggested curator as a curator ad litem or curator bonis or both is required.
This process can be complicated but if you are concerned that you or a loved one is unable to take care of their affairs and has a cognitive impairment or a mental illness which would necessitate a curator, the first step would be for you to seek medical advice and have an examination conducted for an official diagnosis. Thereafter, legal advice is strongly recommended to ensure that the above steps are fulfilled.