The appointment of curators in Road Accident Fund instances
22 December 2020 | Jacques Marais
When people involved in motor vehicle accidents sustain traumatic brain injuries, the question arises whether they still have the necessary legal capacity to administer their own affairs, enter into contracts or to litigate.
In these circumstances, the seriousness of the brain injury is extremely important as it might have an impact on the degree to which an individual’s capacity to litigate and/or administer his/her own estate is limited.
In order to be able to litigate, it is necessary to possess the required legal capacity to partake in the process. People are normally considered to possess the necessary capacity until the contrary has been proven. Once it has been established that an individual indeed lacks the legal capacity, the need arises to appoint an individual to assist with this process.
WHEN DOES AN INDIVIDUAL LACK THE NECESSARY CAPACITY?
In terms of our common law, an individual is considered to lack the capacity to act when he/she is unable to comprehend the consequences of any action taken by him/her and where the inability to comprehend the consequences of said actions are due to a form of mental illness or intellectual disability.
In Road Accident Fund matters this would be when an individual sustained a brain injury and, having been subjected to the relevant medical examinations, the medical examiners are of the opinion that the individual is unable to manage his/her own affairs. Curators are also appointed to assist minors in the absence of a legal guardian or parent.
WHO MAY BE APPOINTED ON BEHALF OF AN INDIVIDUAL LACKING THE NECESSARY CAPACITY?
There are two ways to appoint someone on behalf of an incapable individual. Firstly, in terms of our common law, the High Court may appoint a Curator Bonis to administer the property of an incapable individual. This is preceded by first applying to court for the appointment of a Curator ad Litem.
The second way involves an application made to the Master of the High Court for the appointment of an administrator in terms of The Mental Health Care Act. For purposes of this article, we will focus only on the application made to a High Court in terms of our common law.
THE PROCESS OF APPOINTING A CURATOR BONIS.
The first step is to approach the court for an order declaring the individual incapable of managing his/her own affairs and requesting the appointment of a Curator ad Litem. The Curator ad Litem is responsible for handling all litigation processes on behalf of the incapable individual and is usually an advocate of the High Court, but can also be an attorney.
The application should be accompanied by, among other necessary documents, at least two recent medical reports supplemented by affidavits from the relevant medical practitioners who had recently examined the individual and compiled the medical reports. The reports should set out the following:
- Facts relating to the medical condition;
- Their opinions on the nature, duration and extent of the condition, and
- Specifically address the issue of the individual not being capable of managing his/her own affairs.
Once the Curator ad Litem has been appointed, he/she has to consult with the individual, the abovementioned medical practitioners and any other relevant people with knowledge of the individual’s circumstances in order for him/her to compile a report of their own in which they recommend either the appointment of a Curator Bonis or the creation of a trust.
The Curator ad Litem’s report is filed with the Master of the High Court who, in turn, compiles a report in which he makes his own submissions regarding the suitability of the proposed assistance and the identity of the proposed Curator Bonis.
The second step involves approaching the Court by way of an application for the appointment of the Curator Bonis.
In Road Accident Fund matters the application to appoint the Curator Bonis usually takes place after finalisation of the claim against the Road Accident Fund as the Curator ad Litem is responsible for litigation on behalf of the incapable individual whereas the Curator Bonis generally handles the administration of the individual’s award and affairs.
TERMINATION OF A CURATORSHIP:
Curatorship generally terminates upon the death of the incapable individual, however, where an incapable individual makes a recovery from his mental incompetence; it is possible for the individual to apply to the High Court for an order to be released from his curatorship.