APPOINTMENT OF A CURATOR BONIS IN RESPECT OF PERSONS INCAPABLE OF MANAGING THEIR OWN AFFAIRS:

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Alannah Harrison
5 years ago
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1 APPOINTMENT OF A CURATOR BONIS IN RESPECT OF PERSONS INCAPABLE OF MANAGING THEIR OWN AFFAIRS: The following documents must be lodged: 1) Notice of Motion, affidavit and annexures; 2) Consent to act as curator-ad-litem (if applicable); 3) Certified copy of Court Order appointing curator-ad-litem (if applicable); 4) Report by curator-ad-litem (if applicable); 5) Certified copy of Court order appointing curator bonis; 6) Application for appointment as Tutor/Curator (J197) signed by the curator with full addresses and amount of bond. Must be properly witnessed; 7) Undertaking and Bond of security and suretyship. Must be an original. Master must be cited correctly. Bond must be provided by an insurance company, and suretyship document must contain the stamp of the insurance company UNLESS THE CURATOR BONIS IS EXEMPT FROM FURNISHING SECURITY IN TERMS OF THE COURT ORDER; 8) Certified copy of the identity document of the curator bonis as per the court order; 9) Certified copy of the identity document of the patient; 10) Inventory.

2 APPOINTMENT OF AN ADMINISTRATOR IN TERMS OF SECTION 60 OF THE MENTAL HEALTH CARE ACT 17 OF 2002: The situation must be such that the patient suffers from a mental illness or severe intellectual disability. Assets must be below R and income must be below R p.a. Remember that this procedure may take a few months because of the notices that need to be sent out, and the client must be informed of this from the outset. The following must be lodged: 1) Covering letter; 2) CB 11 form application to the Master to appoint an administrator. Affidavit must confirm that no similar application has been lodged in respect of the same person with another Master; reasons to be furnished why it is in the best interests of the person alleged to be mentally ill that the specific Master s office exercises jurisdiction. A suitable person must be recommended. Valid reasons must be advanced for the appointment; 3) Doctor s reports/ psycho-social reports (x2 lodged in the original must be recent); 4) Patient s receipt / acknowledgement of the application brought for appointment of an administrator. Where the patient is unable to appreciate the nature of the application because of his condition, the person in whose care he is, must confirm so on affidavit ; 5) Inventory (value of property must be below R and annual income must be below R p.a. If possible, proof of the assets and income must be lodged); 6) Certified copy of the identity document of the applicant; 7) Certified copy of the identity document of the patient; 8) Undertaking and Bond of security and suretyship to cover the full value of the assets. Must be an original. Master must be cited correctly. Bond must be provided by an insurance company and suretyship document must contain the stamp of the insurance company, OR if applying for an exemption, a motivation as to why the applicant should be exempt from furnishing security; 9) Nominations for appointment of the applicant (All interested parties must have made representations on the matter. If not, Master will write to them for their input. They must lodge nominations); 10) Next-of-kin affidavit of the patient; 11) CB 48(e) / J197 application for appointment (to be signed by applicant. Ensure that all addresses are indicated and, if a bond is being furnished, the amount must be stated).

3 FOR APPOINTMENT OF A CURATOR BONIS IN ASSET FORFEITURE MATTERS: The following must be lodged: 1) Notice of Motion, draft order, annexure A setting out assets, founding affidavit, annexures, consent letter from curator bonis. Court order will indicate who has been appointed as the curator bonis; 2) Certified copy of Court order (preservation/confiscation/realisation); 3) Application for appointment as Tutor/Curator (CB 48(E) /J197) signed by the curator with full addresses and amount of bond. Must be properly witnessed; 4) Undertaking and Bond of security and suretyship. Must be an original. Master must be cited correctly. Bond must be provided by an insurance company and suretyship document must contain the stamp of the insurance company; 5) Certified copy of the identity document of the curator bonis as per the court order; 6) Inventory (filed in some cases); 7) Affidavit of non-interest (filed in some cases).

4 RESIGNATION OF CURATOR BONIS & APPOINTMENT OF A REPLACEMENT CURATOR BONIS: RESIGNATION: The following must be lodged: 1) Written and signed resignation; 2) Final account; 3) section 75 advertisement (termination - in govt gazette and newspaper); 4) affidavit that all debit items have been paid; 5) receipt from new curator/proof of deposit into Guardian s Fund; 6) Cash Reconciliation Statement dealing with cash movements from date of final account to date of payment; 7) final bank statement reflecting a Rnil balance; 8) affidavit for reduction of bond of security to Rnil; 9) Original Letters of Curatorship. NEW APPOINTMENT: The following must be lodged: 1) Next-of-kin affidavit of patient; 2) Written nominations for appointment of new curator (by all interested parties); 3) Application for appointment as Tutor/Curator (J197) signed by the curator with full addresses and amount of bond. Must be properly witnessed; 4) Undertaking and Bond of security and suretyship. Must be an original. Master must be cited correctly. Bond must be provided by an insurance company and suretyship document must contain the stamp of the insurance company; 5) Certified copy of the identity document of the new curator bonis; 6) Certified copy of the identity document of the patient. Appointment is done in terms of section 73 of the Administration of Estates Act 66 of 1965 as amended, read with Ex Parte Ganga (powers remain the same as for previous curator). Input of next-of-kin is required as they were involved in the appointment of the initial curator bonis and the Act requires that they be involved.

5 CONSIDERING INVESTMENTS: Questions that need to be answered/compliance to be lodged: 1) does the court order authorise the curator bonis to make investments? (the Master cannot extend curator s powers to invest in shares if the High court did not authorise same); 2) does the curator bonis require the Master s approval to invest? 3) where will the investment be made? 4) is the capital guaranteed? 5) what is the percentage of interest that is generated? 6) is the income guaranteed? 7) what is the broker s commission/administrative fees that the broker or financial institution charges? 8) an affidavit from the curator bonis that he does not have a pecuniary interest in the investment (except for the 6% in respect of curator s fees); 9) 3 quotations from financial institutions in respect of the proposed investments and an indication of which one he favours; 10) what implication will the investment have on income tax? Also, have regard to the following case law regarding investments: Sackvill West v Nourse & Another 1925 AD 516, Ex Parte Wagner NO: In Re De Bie 1988 (1) SA 790 Ex Parte Ewing NO: In Re Sheridan 1995 (4) SA 101 D & CLD. Kindly note that: 1) In the Ex Parte Wagner case, Judge King indicated that the curator must act with prudence and caution and only after full and careful consideration, invest the assets of the estate with diligence and safety, avoiding exposure to commercial risk. The judge went on to say that case was in many ways a special case and that that it merited special treatment. The court, therefore, allowed the investment in stocks and shares (but subject to the curator reporting quarterly to the Master on the investments made). It is to be noted that the Master had said that it is not the policy of his office to approve speculative investments such as investments in shares in companies on the stock exchange; 2) In the Ex parte Ewing case, the court held that each case had to be decided on its own facts and that additional powers authorizing investments in shares on the stock exchange should only be granted in special cases. As it was found to be a special case, the court granted the curator additional powers. It is to be noted that the Master opposed the granting of the additional powers, basing his opposition on the principle in the Sackville West case; 3) The Master does not have the authority to consent to any investment involving the element of uncertainty and risk (refer to the rule as enunciated in the Sackvill West case); and 4) The Master does not have the authority to consent to an investment of capital in shares, participation bonds and other speculative investments unless the court has expressly authorized the curator bonis to do so (refer to the Ex Parte Ewing and Ex Parte Wagner cases). The capital must be guaranteed. Curator can approach the court for permission to invest in risky investments.

6 ALLOWANCE TO BUILD A HOUSE: Questions that need to be answered/ compliance to be lodged: 1) how is the building of the house in the best interests of the child/patient? 2) an affidavit from the guardian setting out reasons why the costs are to be incurred; 3) confirmation of the specific costs involved in maintaining the child/patient (per month); 4) can the curatorship afford the construction of the house? 5) can the curatorship afford the rates and taxes and maintenance of the property? What are these estimated at? 6) an indication of who will be living on the property and their contributions to the building, and the running of the household; 7) what are the child s/patient s views on his contribution and does he consent? Lodge said consent; 8) what will the structure of the house be? 9) quotations on labour from 3 registered building contractors for same work to be performed; 10) quotations on material from 3 hardware stores for same material to be purchased; 11) plans of the house; 12) duration of the contract; 13) confirmation that payments will be made directly to the builder and hardware (if permission is granted); 14) proof of registration of the property (if permission is granted).

7 PURCHASING OF A HOUSE: Questions that need to be answered/compliance to be lodged: 1) how is the acquisition of the house considered to be in the best interests of the minor/patient? 2) can the curatorship afford the purchase of the property? 15) can the curatorship afford the rates and taxes and maintenance of the property? What are these estimated at? 3) valuation by 3 estate agents or sworn valuation; 4) what are the specific costs involved in maintaining the child/patient (per month); 5) who will be living on the property and what are their contributions to the maintenance of the property? 6) advice as to the possibility of the property losing value; 7) original or certified copy of the sale agreement curator must be mentioned (if permission is granted); 8) proof of registration of the property (if permission is granted).

8 SALE OF A HOUSE (SECTION 42(2) APPLICATIONS): (SECTION 42(2) IS APPLICABLE TO TUTORS AND CURATORS) Questions that need to be answered/compliance to be lodged: 1) does the curator have the necessary authority to alienate the immovable property? 2) motivation to sell (including necessity/ advantage to the patient); 3) method of sale Master to state the manner and conditions of the sale; 4) sworn appraisal / valuations by 3 estate agents; 5) where is the patient currently residing and where will he reside after the sale? 6) to what extent has the property been marketed? 7) section 42(2) questionnaire; 8) original or certified copy of the sale agreement duly signed curator must be mentioned; 9) confirmation that the purchaser is not one of the persons mentioned in section 49(1) r/w section 85; 10) is there any restriction on alienation in the title deed? 11) consents to the sale co-owners and bondholders; 12) does the property generate any income and if so, how much and at what intervals? 13) inventory to reflect property per its title deed description; 14) Power of Attorney to Transfer (if permission is granted).

9 TERMINATION OF A CURATORSHIP: Questions that need to be answered/compliance to be lodged: 1) certified copy of order of court declaring person capable of managing her affairs / certified copy of death certificate of patient; 2) final account; 3) section 75 advertisement (for termination - in Govt Gazette and newspaper); 4) affidavit that all debit items have been paid; 5) receipt from patient or receipt from executor in patient s deceased estate together with a certified copy of the Letters of Executorship; 6) final bank statement reflecting a Rnil balance; 7) affidavit for reduction of bond of security to Rnil; 8) return Letters of Curatorship.

ESTATES AND SUCCESSION

Page 1 of 57 ESTATES AND SUCCESSION ESTATES ADMINISTRATION OF ESTATES ACT 66 OF 1965 (English text signed by the State President) as amended by also amended by Regulations under this Act GG GG Page 2 of