The provisions of the Mental Health Care Act, 17 of 2002 (“MHCA”) provide that the Master of the High Court may appoint an administrator to manage the property of any person who is diagnosed as mentally ill or who has a severe or profound disability (such that he is unable to manage his/her own affairs).
An application for the appointment of an administrator in terms of the MHCA dispenses with the need to proceed with a common law application to court for the appointment of a curator bonis. It is one of the requirements for an appointment of an administrator in terms of the MHCA that a patient’s assets must not exceed R 200 000.00 in value.
Due to there being no need for any High Court application in respect of the appointment of an administrator in certain circumstances, this procedure is naturally far less costly than the common law application to court for the appointment of a curator bonis.
The procedure and requirements of an application for an administrator is set out as follows:
i. The application can be made by any person over the age of 18 years.
ii. The patient must be diagnosed (and the application accompanied by the relevant medical certificate by at least two independent medical and/or mental health practitioners) with a mental illness or a severe or profound disability.
iii. The applicant must submit his application in writing, under oath or solemn affirmation, and must:
- Set out the relationship of the applicant to the patient;
- If the applicant is not the spouse or next-of-kin of the patient, give reasons as to why the application is not being made by the foregoing;
- Describe the steps taken to establish the whereabouts of the next-of-kin before making the application, if neither the spouse nor the next-of-kin are available to make the application themselves;
- Be accompanied by all available (at least two independent) mental health-related medical certificates or reports relevant to the mental health status of the patient;
- State that, within seven days immediately before submitting the application, the applicant had in fact seen the patient;
- State the estimated property value and annual income of the patient (inventory); and
- Provide particulars and contact details of anyone who may provide further information relating to patient’s mental status.
iv. The applicant must attach proof that a copy of the application has been submitted to the mentally ill person.
Once appointed, the powers and responsibilities of an administrator are essentially to administer the estate of the patient, including the following:
- To receive, take care of, control and administer all the assets of the patient.
- To carry on/or discontinue, subject to any law which may be applicable, any trade, business or undertaking of the patient.
- To acquire, whether by purchase or otherwise, any property, movable or immovable, for the benefit of the estate of the patient.
- To apply any money for the maintenance, support or towards the benefit of the patient, and to invest or re-invest any funds.
The exercise of the powers vesting in the administrator are subject to the prior consent and approval of the Master of the High Court.
Author: Tembelani Vabaza