How to care for a mentally disabled adult the legal way?

The World Health Organisation’s Report on Ageing and Intellectual Disabilities, states that a person with down syndrome is regarded to have an intellectual disability as opposed to a mental illness.

A person with an intellectual disability never attains full mental ability due to a range of factors either prior to birth, at birth or during childhood up to the age of brain maturity. There is generally no medical treatment for intellectual disability. They therefor require someone to manage their affairs on their behalf.

This is done in the form of a curator personae, curator bonis, and/or administrator. Anyone may make an application to be appointed as such and this appointed person will be able to care for intellectual disability or administer their property.

What does the different options entail and procedure do you have to follow to obtain the appointment?

Curator Personae:

This person is appointed in respect of a person who is incapable of making their own decisions with regards to their care, custody and personal welfare.

The application to be appointed as a Curator Personae is made in the High Court and must contain the following:

• the full particulars of the applicant;
• Age, sex, full particulars of his/her means and information as to his/her general state of physical health;
• The relationship between the “patient” and the applicant;
• The facts and circumstances relied on to show that the patient is of unsound mind and incapable of managing his/her affairs;
• The name, occupation and address of the respective persons suggested for appointment by the court; and
• Two (2) recent medical reports by medical doctors, one of whom shall (where practicable) be a psychiatrist.

Curator Bonis

The appointed person is appointed to administer the property of a person who is incapable of managing their own affairs. This application may be made simultaneously with the application for the appointment of the curator personae.

This application is also made in the High Court and essentially will contain the same as the application for the curator personae.

Administrator

The Mental Health Care Act No. 17 of 2002 makes provision for the appointment of an administrator to care for and administer the property of a person who is diagnosed as having a severe or profound intellectual disability, which may include downs syndrome. The application for the appointment of an administrator may be made simultaneously with an application for the appointment of a curator personae.

The application is made to the Master of the High Court and must contain the following:

• Set out the relationship of the applicant to that person and if the applicant is not a spouse or next of kin the reason why the aforementioned people did not make the application. Should the spouse or next of kin not be in a position to make the application, what steps were taken to establish their whereabouts prior to making the application.
• include all available mental health related medical certificates or reports relevant to the mental health status of that person and to his or her incapability to manage his or her property
• set out the grounds on which the applicant believes that such person is incapable of managing his or her property
• state that, within seven days immediately before submitting the application, the applicant had seen that person
• state the particulars of that person and his or her estimated property value and annual income; and
• give the particulars and contact details of persons who may provide further information relating to the mental health status of that person.

The viability and appropriateness of each of the options above is usually a case-by-case consideration and it is therefore recommended that you contact an attorney to assist you with choosing the best option and inform you of the correct procedure to follow.

Please feel free to contact our offices should you require further information on this subject or require assistance with such an application.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)