It is estimated that around 400 million people worldwide suffer from some type of mental illness or disorder.
An unfortunate side effect of mental illness, however, is that many of the persons suffering from the illness are partially or completely unable to manage their day to day decision making, much less manage their estate in general, which is where a family member or concerned person often has to step in to assist.
Historically, in order to be granted the legal status and capability to manage a living person’s estate, an application to the High Court would have to be made for the concerned person to be granted the status of a curator bonis.
A curator bonis has the legal status to manage and administer the estate and affairs of another living person. While the application is not an overly complicated one, the costs related to applying to the relevant High Court with jurisdiction over the matter are exorbitant, which often precludes people from even attempting it.
The result, unfortunately, is that many people suffering from mental illness were therefore without the much-needed assistance in managing their affairs.
In an effort to address the problematic issues caused by such socio-economic based restriction, the Mental Health Care Act 17 of 2002 was passed in 2002 but only came into operation in 2004.
The Mental Health Care Act now provides for the appointment of an administrator over the estate of a person suffering from mental illness or a severe or profound intellectual disability.
The application to be appointed as an administrator is brought by any person over the age of 18 who must show, among other things, that they have a sufficient interest in the matter, that the relevant person is indeed suffering from a mental illness that renders them incapable of dealing with their own affairs, and that such person will be taken care of once such administrator has been appointed.
The most important aspect of this application, however, is that it does not need to be made to the High Court, but rather to the Master of the High Court, thereby curtailing the extraneous costs associated with a curator bonis application.
The Act falls short, unfortunately, in providing assistance for those who are unable to manage their affairs due to physical disabilities, in that the Mental Health Care Act provides relief solely to persons suffering from a mental illness.
Accordingly, persons suffering from temporary, partial, or even whole body physical disabilities are not covered by the act, and any person wishing to assist such person in dealing with their affairs will have to undertake the arduous, and costly, journey of a curator bonis application.
Article compiled by Peter Allen Roux, candidate attorney at Malherbe Rigg and Ranwell Attorneys (MRR). For any advice or assistance in relation to administration or curatorship proceedings, contact MRR on 011 918 4116.
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