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Being capable of making decisions regarding one’s personal affairs and assets forms an integral part of our day-to-day lives.

If, however, a person is diagnosed with a severe or profound intellectual disability, the law no longer attaches consequences to the decisions made by such person.  In practical terms this means that the person cannot dispose of property, grant a power of attorney, issue instructions regarding his/her investment or take receipt of an inheritance. As a result, a third party must be appointed to administer the person’s affairs and act on the person’s behalf.

There are currently two avenues available to apply for the appointment of a third party to administer a mentally incapacitated person’s affairs.  The first is to apply to the High Court for the appointment of a curator ad litem and then a curator bonis.  The High Court first appoints a curator ad litem, usually an advocate of the High Court, to investigate the legitimacy of the application and then, if satisfied, appoints a curator bonis to administer the incapacitated person’s affairs.

It appears that few people are aware that there is an alternative and more cost-effective avenue available.  In terms of Section 60 of the Mental Health Care Act (Act 17 of 2002), any person over the age of 18 years may apply to the Master of the High Court for the appointment of an administrator for a mentally ill person or person with severe or profound intellectual disability.

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).

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.

In a recent application which we 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 and must set out the relationship of the applicant to the patient.  It 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.  It 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.

The Master allocates a reference number to the estate, issues the confirmation of the administrator’s appointment and simultaneously issues detailed instructions and directions to the appointed administrator.

Expert Contributor: Chamonie Buys, Director, Johannesburg Office


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