UNDERSTANDING CURATORSHIP: Can I sell the immovable property of or buy immovable property on behalf of a mentally incapable person?

UNDERSTANDING CURATORSHIP: Can I sell the immovable property of or buy immovable property on behalf of a mentally incapable person?

Understanding curatorship: The short answer is yes, provided that someone is appointed as a curator to do so.

Author: Nikita Amy Lewis

Understanding curatorship: The short answer is yes, provided that someone is appointed as a curator to do so. The purpose of the appointment is to take care of the property of a person who is mentally incapable of doing so themselves. However, it is not limited to the property of such person but can be extended to their personal and health related matters.

Many people assume that when they hold a General Power of Attorney or Special Power of Attorney that they have the authority to manage another’s estate or financial affairs. However, that is not the case where someone is mentally incapable of making decisions on their own. An example would be a person who suffers from dementia or Alzheimer’s. It is thus unlawful to act based on the aforementioned Power of Attorneys once the grantor loses their cognitive capacity.

THREE TYPES OF CURATORS THAT MAY BE APPOINTED

  1. Curator ad litem: appointed to assist a person in legal proceedings (i.e. legal representative, particularly an Attorney or Advocate appointed by the High Court of South Africa)
  2. Curator bonis: appointed to manage a person’s proprietary interests (i.e. property and/or estate)
  3. Curator personae: appointed to take care of a person’s personal needs (i.e. daily care and treatment)

APPOINTMENT OF A CURATOR

A curator, according to the Administration of Estates Act 66 of 1965, is “any person who is authorized to act under letters of curatorship granted or signed and sealed by the Master of the High Court (“the Master”), or under an endorsement made in terms of section 72 (seventy-two)”. In essence, a person can only act as a curator once letters of executorship has been issued by the Master, which letters will only be granted once the court authorizes the same.

One must first apply for the appointment of a curator ad litem. The application for the appointment of a curator ad litem is brought in terms of Rule 57 of the High Court.Any interested party, usually family member or friend of the mentally incapable person, that has the right or legal capacity to bring the application to the court may do so. If the application is approved, it declares the person unsound of mind and incapable of managing their own affairs.

The curator ad litem is responsible for recommending the appointment of the curator bonis whom the Master must approve. If it is approved, the Master will issue letters of curatorship to the curator bonis as well as a list of powers relating to the management of the estate of the person under the curatorship.

BUYING ON BEHALF OF AND SELLING OF IMMOVBLE PROPERTY OF A PERSON UNDER CURATORSHIP

One of the main duties of a curator bonis is to lodge an inventory to the Master which sets out all the assets, for example, bank accounts, property, etc. of the person under the curatorship. Furthermore, they need to provide the Master with an annual report of the administration of the estate.

When signing an Offer to Purchase, the person selling or buying must be sound of mind. In other words, they must have the mental capacity to understand and acknowledge their actions and the consequences thereof. No one can sign on behalf of another person unless they are authorized to do so by means of a General Power of Attorney or Special Power of Attorney if the person is sound of mind, or under letters of curatorship if the person is incapacitated.

When acting under letters of curatorship, the sale or purchase of the property must be to the benefit of the person under the curatorship. The Court or the Master must authorize such sale and/or purchase of immovable property.

CONCLUSION If a person does not have the required legal capacity, i.e. to sign documents and authorize transactions, whether it be to his or her financial benefit or not, a curator must be appointed. No one can sign on behalf of any person unless they are legally and duly authorized to do so.

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