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CURATORS AND TUTORS

This division of the Master's office supervises the administration of the
affairs of persons whose property is, for various reasons described in this
section, under the control of another person called a curator or tutor.  Click
on the links below for more information of various aspects.

The new Mental Health Care Act 17 of 2002 was promulgated on 15 December 2004.
The new act will replace the 1973 one. The new act came into immediate effect as
from Wednesday 15 December 2004.

The various appointments set out above as well as the requirements for each
appointment will be dealt with separately.


CURATORS

The Curatorship section is a division within the Master of the High Court.The
main function of the section is to provide efficient, cost effective and
specialized services of supervision in estates of minors and mentally challenged
persons in South Africa. The Curatorship Section assists a huge variety of
people from all walks of life, i.e. minors, persons incapable of managing their
own affairs – such as – People with brain injuries, i.e. a motor vehicle
accident or a stroke; intellectual disabilities; mental illness, dementia;
Alzheimer decease etc.This section supervises the administration of estates in
which applications are lodged to appoint a Curator Bonis; Curator Personae; and
Administrators in terms of the Mental Health Care Act; Tutors for minors, as
well as Curator Bonis in Asset Forfeiture Matters.

There are two procedures in terms of which someone can be appointed to
administer the estate of a person who is found to be incapable of managing his
or her own affairs. These procedures are the common law procedure for the
appointment of a curator that requires an application to the High Court, and the
procedure for the appointment of an administrator as set out in the Mental
Health Care Act, 17 of 2002.

COMMON LAW: Appointment of a Curator Bonis in terms of our common law:

The High Court may declare a person incapable of managing his or her own
affairs, and may appoint a curator to the person and/or property of such person.
The procedure for this application is set out in Rule 57 of the Uniformed Rules
of the High Court.

Any person who wishes to bring an application to the court for an order
declaring another person to be of unsound mind and incapable of managing his/her
own affairs and appointing a Curator to the person or property of such persons
must first apply to court for the appointment of a Curator-ad-Litem.

MENTAL HEALTH CARE ACT APPLICATION:

In terms of the Mental Health Care Act the Master of the High Court may on
consideration and processing of the prescribed application, appoint an
administrator to manage the property of a person who has been positively
diagnosed as mentally ill or a person with severe or profound intellectual
disability.

The difference between the two applications are that the common law application
is applicable to any situation where the person becomes incapable of managing
his/ her own affairs, whereas this application can only be utilized if the
person has a mental illness or a severe or profound disability

POWERS AND RESPONSIBILITIES OF A CURATOR AND ADMINISTRATOR:

The powers of a Curator Bonis and an administrator is basically to administer
the estate of the person who is incapable, which could include the following for
instance:

 * 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; and
 * to apply any money for the maintenance, support or towards the benefit of the
   person; to invest or re-invest any funds etc.

These powers are usually subject to the prior consent and approval of the
Master.

ACCOUNTS

The Curator Bonis and administrator are obliged to lodge a yearly administration
account with the Master, which sets out the income, expenses and value of the
capital assets of the estate. The Master scrutinize these accounts to verify the
income, expenses and capital assets and to ensure that if security is provided
it is amended according to the value of the estate.

FEES

The fees of a Curator Bonis and administrator are prescribed in the
Administration of Estates Act. It is 6% on the annual income of the estate and
2% on the value of the capital assets of the estate at termination of the
Curatorship. The Master may however reduce, disallow or increase the fees if
special reasons exist. 

APPOINTMENT OF A CURATOR FOR AN ABSENT PERSON:

It sometimes happens that a person disappears without trace, leaving property
that must be cared for. Although the person may leave family members or friends
behind, they are by law unable to administer any assets belonging to the missing
person, unless they are authorized in terms of section 73 of the Administration
of Estates to administer the assets as curator.

If it comes to the knowledge of the Master that any absentee is the owner of
property in the Republic of South Africa, and he is satisfied that the said
property should be cared for or administered on behalf of the absentee, he may
appoint a Curator Dative. The appointment of a curator is usually initiated by
an interested party who lodges a written application with the Master.

Requirements for an Appointment:

 * Written application to the Master;
 * A preliminary inventory - form J243 which reflects the assets of the
   absentee;
 * Nominations of a suitable person to be appointed as curator, by interested
   parties (these nominations are usually obtained during a meeting convened by
   the Master for this purpose);
 * Undertaking and bond of security - form J262 by the nominated curator
 * Application for appointment as curator - form J197

TERMINATION OF A CURATORSHIP MATTER:

A Curatorship is usually terminated at the death of the person who has been
declared incapable of managing his/her own affairs, but the person under
curatorship may also apply to the High Court to be released under Curatorship if
the circumstances allow it – for example, the person has remarkably recovered
from a stroke or a brain injury etc. It involves an application to the High
Court and the process is prescribed in Rule 57 of the Uniform High Court rules.

TERMINATION OF THE ADMINISTRATION IN TERMS OF THE MENTAL HEALTH CARE ACT:

If a person in respect of whom an administrator has been appointed in terms of
the Mental Health Care Act recovers from his or her mental illness to such an
extent that he or she is once again capable of managing his or her own affairs,
that person or the administrator or the applicant may apply to the Master of the
High Court in terms of section 64 of the Mental Health Care Act to terminate the
administration.

APPOINTMENT OF A CURATOR BONIS IN ASSET FORFEITURE MATTERS:

A Curator Bonis are appointed in these matters to seize and administrate the
assets until the matter is finalized.

The Master assist with the appointment of a Curator Bonis and the taxation of
his/her fee when the matter has been finalized.

In terms of the Prevention of Organised Crime Act, 121 of 1998, the High Court
may issue an order authorizing the seizure of property subject to a restraint or
preservation order, or may issue an asset forfeiture order, where the court is
satisfied that there are reasonable grounds to believe that the property
concerned, or the proceeds thereof, was derived, received or retained, directly
or indirectly, in connection with, or as a result of, any unlawful activity.

Where the court has authorized the attachment of such assets by the Asset
Forfeiture Unit, it appoints a curator to administer the assets. The appointed
curator, however, has no authority to act as such until duly authorized by the
Master. Authorization takes the form of letters of appointment issued by the
Master.

Requirements for an Appointment:

 * Copy of the court order;
 * An inventory - form J243 which reflects the assets to be administered
 * Undertaking and bond of security - form J262 by the court appointed curator;
 * Application for appointment as curator- form J197.

 


TUTORS

A tutor or curator may also be appointed over the estate of a minor if
necessary. A child or minor is defined in the Children’s Act as meaning a person
under the age of 18 years.

In terms of section 17 of the Act a child, whether male or female, becomes a
major upon reaching the age of 18 years. The general rule is that minors are
under disability in that the law does not regard them as capable of managing
their own affairs. Under normal circumstances it is the parents of the minor,
who are also the minor’s natural guardians, who supervise the minor’s affairs
and assists him or her legally where necessary, but sometimes it may happen that
a minor has no natural guardian (for example where both parents are deceased),
and that no parental responsibilities and rights have been granted to any other
person either in a valid Will. 

Where the minor’s property consists of cash and investments only it can be
deposited into the Guardian’s Fund in which case no tutor or curator to the
minor’s property is required, although a tutor or guardian to look after the
person of the minor may be necessary.

It should however be noted that the Master does not have the power to appoint a
tutor or guardian over the person of a minor. Only the High Court may do so.

Who may nominate or appoint a Tutor?

 One must distinguish between three scenarios, namely

 * testamentary appointed tutors;
 * court appointed tutors;  and
 * Tutor dative, appointed by the Master

Although a tutor may be nominated or appointed by will or the court, the
nominee/appointee has no authority to act as tutor until duly authorized by the
Master.   Authorization takes the form of letters of appointment issued to the
designated person.

The three scenarios set out above as well as the requirements for each
appointment will be dealt with individually.

Testamentary appointed Tutor

A parent or guardian of a minor may nominate a person to be appointed as a tutor
over the assets and person of a minor in his/her Will.The nominated tutor must
apply to the Master to be appointed, after the death of parent/s or guardian.

Only the following persons may validly nominate a tutor in their will:

 * The sole natural guardian (surviving parent) of a legitimate minor, who has
   not been deprived of his/her guardianship over such minor by the court.
 * The mother of an illegitimate minor, who has not been deprived by the Court
   of guardianship of such minor.
 * The parent to whom the sole guardianship of the minor has been granted by the
   court.

Requirements for an appointment

 * The will in which the tutor has been nominated must be properly registered
   and accepted by the Master;
 * A preliminary inventory – form J243 which reflects the assets of the minor;
 * A declaration by the nominated tutor wherein he/she declares that the person
   who nominated him or her in the will was legally competent to do so;
 * Undertaking and bond of security – form J262 by the nominated tutor, unless
   the tutor has been exempted from furnishing security in the will.
 * Application for appointment as tutor – form J197.

Immovable property of a Minor

No natural guardian or tutor or curator may alienate or mortgage any immovable
property belonging to a minor, unless he/she is authorized thereto by the Court
or by the Master.

The Master may consider applications where the share of the minor in the
immovable property is R250 000.00 or less. Above this amount requires a
application to the High Court.

Court appointed Tutor

The court as the upper guardian of all minors may appoint a person as tutor of a
minor to take care of the person of the minor and to administer the property of
the minor.

It is usually an interested party who lodged the application to Court by way of
Notice of Motion. On receipt of the application the court will usually appoint a
curator-ad-litem to protect the interests of the minor and to investigate the
merits of the application. Both the curator-ad-litem and the Master must
lodge reports to the court

Once the court has granted the application and appointed a tutor, the Master
must give effect to the court order by issuing letter of tutorship and thereby
authorizing the appointed tutor to act.

Requirements for an appointment:

 * A copy of the application to court together with the reports by the
   curator-ad-litem and the Master;
 * The court order appointing the tutor;
 * A Preliminary inventory – form J243, which reflects the assets of the minor;
 * Undertaking and bond of security – form J262 by the nominated tutor, unless
   the tutor has been exempted from furnishing security by the court.
 * Application for appointment as tutor – form J197.

Tutor dative appointed by the Master

If it comes to the knowledge of the Master that any minor is the owner of
property in the Republic of South Africa, which is not under the care of any
guardian, tutor or curator, and he is satisfied that the property should be
cared for or administered on behalf of such minor, he may appoint a tutor
dative. (The Master cannot appoint a tutor dative over the person of a minor.) 

The appointment of a tutor dative is usually initiated by an interested party
who lodges a written application with the Master. 

Requirements for an appointment: 

 * Application to the Master; 
 * A preliminary inventory – form J243 which reflects the assets of the minor;
 * Nominations of a suitable person to be appointed as tutor by the next-of-kin
   of the minor (these nominations are usually obtained during a meeting
   convened by the Master for this purpose);
 * Undertaking and bond of security – form J262 by the nominated tutor; 
 * Application for appointment as tutor – form J197.



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