How a curatorship application proceeds
The process begins before any curator is appointed to administer property. Uniform Rule 57 requires an applicant to apply first for the appointment of a curator ad litem to the person concerned, so that the person has independent representation in the proceedings that will determine their capacity.
That first step is not a formality. It exists because the application concerns a person who may not be able to participate in it, and the courts have treated the requirement as peremptory.
Only once that process has run does the question of appointing a curator to administer the property, and the security attaching to that appointment, come before the court.
Source: Uniform Rules of Court, Rule 57 (De lunatico inquirendo, appointment of curators in respect of persons under disability and release from curatorship), subrule 57(1).
The Master's report and recommendations on security
The Rule gives the Master a specific function. The Master must report on the means and circumstances of the person concerned and on the suitability of the proposed curator, and must make such recommendations as to the furnishing of security, the rendering of accounts and the powers to be conferred on the curator as the facts of the case appear to require.
It is worth being precise about what this means. The Rule requires the Master to make recommendations about security; it does not itself impose the obligation to furnish it. The obligation arises from the terms of the court's order and, for a curator administering property, from the estates legislation governing tutors and curators.
The court then appoints on such terms as to it may seem meet, which is where the security requirement, the accounting obligations and the scope of the curator's powers are actually fixed.
Source: Uniform Rules of Court, Rule 57, subrules 57(7) and 57(10); Administration of Estates Act 66 of 1965, Chapter IV (Tutors and Curators).
Why curatorship security matters more than most
In a deceased estate the heirs are usually adults who can ask questions. In a family trust the beneficiaries often include people who take an active interest. In a curatorship the person whose property is being administered is, by the very finding that led to the appointment, unable to supervise what is being done with it.
That asymmetry is why the protective machinery is more elaborate here. The independent representation at the application stage, the Master's report on suitability, the accounting obligations imposed by the order and the security all address the same underlying problem.
It is also why the assets involved are often substantial. Curatorship frequently follows a serious motor accident, a medical event or a substantial damages award, and the fund under administration may need to support the person for decades.
Interim appointments
Circumstances sometimes require someone to take charge of property before a full curatorship application can be completed. The estates legislation provides for the appointment of an interim curator, which allows immediate protective steps to be taken.
An interim appointment is a stopgap and is not a substitute for the full process. Anyone acting under one should establish what security and accounting obligations attach to it, and should not assume they mirror those of a final appointment.
Source: Administration of Estates Act 66 of 1965, section 12 (Appointment of interim curator).
How a curator bond is assessed
A guarantor issuing a curator bond is standing behind the honesty and competence of a person managing a fund on which another person depends, potentially for the rest of their life. The duration and the vulnerability of the beneficiary make this a distinctive exposure.
Where the curator is a family member, personal circumstances receive close attention, because the arrangement puts a person under financial pressure of their own in control of a fund they cannot use. Where the curator is a professional, the assessment turns on the practice, its controls and its trust account arrangements.
What is normally examined
- The court order appointing the curator and the terms it imposes
- The Master's report and any recommendation made about security
- The value and composition of the property to be administered
- The expected duration of the curatorship and the ongoing needs it must fund
- Whether the property includes a business, immovable property or illiquid interests
- The curator's personal financial position, credit history and any conflict of interest
- The curator's experience of comparable appointments, and whether a practitioner is assisting
- The counter-indemnity and any supporting security
Accounting obligations run alongside the security
Security is only part of the protective structure. The court's order will normally impose obligations to account, and the Master's recommendations address the rendering of accounts as well as security.
Those obligations are the mechanism by which problems are identified while they can still be corrected. A curator who accounts properly and on time is demonstrating precisely what a guarantor wants to see, and a failure to account is usually the first visible sign that something has gone wrong.
The bond protects the person under curatorship
As with other fiduciary security, the bond protects the person whose property is being administered. It does not protect the curator. If the guarantor pays, it will normally recover from the curator under the counter-indemnity.
A practitioner accepting curatorship appointments as part of a practice should treat professional indemnity cover as a separate question, because that is what responds to a claim brought against the practice arising from services rendered.
Read the legal practices professional indemnity guide →
Related fiduciary appointments
Executors and trustees face comparable but separately regulated security requirements under different legislation. Each appointment should be considered on its own terms rather than by analogy with the others.
Read the court bonds overview →
COMMON QUESTIONS
Curator bond questions, answered clearly.
What is a curator bond?
It is security furnished in connection with an appointment to administer the property or affairs of a person who is unable to do so themselves, so that the person concerned has recourse if the curator defaults.
How is a curator appointed?
By the court. Uniform Rule 57 requires an applicant to apply first for the appointment of a curator ad litem to the person concerned, so that they have independent representation, and the court then appoints on such terms as to it may seem meet.
Does Rule 57 require a curator to furnish security?
Not in those terms. The Rule requires the Master to report on the means and circumstances of the person concerned and the suitability of the proposed curator, and to make recommendations as to the furnishing of security, the rendering of accounts and the powers to be conferred. The obligation itself flows from the court's order and from the estates legislation governing tutors and curators.
Why is the curator ad litem step necessary?
Because the application concerns a person who may not be able to participate in it. The requirement exists to ensure independent representation, and the courts have treated it as peremptory.
How is the amount of the security determined?
It follows the value and composition of the property to be administered, informed by the Master's report and fixed by the terms of the court's order. Duration and the ongoing needs the fund must meet are also relevant.
How long does a curatorship last?
It can last for the lifetime of the person concerned, which makes it the longest-dated of the fiduciary appointments. Rule 57 also deals with release from curatorship where circumstances change.
Can a family member be appointed as curator?
Yes, and it is common. A guarantor will pay close attention to the personal circumstances of a family curator, because the arrangement places a person who may be under financial pressure of their own in control of a fund they cannot use. Any conflict of interest in the assets is also relevant.
What is an interim curator?
The estates legislation provides for the appointment of an interim curator where immediate protective steps are needed before a full application can be completed. It is a stopgap, and the security and accounting obligations attaching to it should be established rather than assumed.
Does the bond protect the curator?
No. It protects the person whose property is being administered. If the guarantor pays, it will normally recover from the curator under the counter-indemnity.
Is a curator bond the same as professional indemnity insurance?
No. The bond secures the obligations of the appointment. Professional indemnity insurance responds to a claim brought against a practice arising from services rendered. A practitioner accepting curatorship appointments should consider both.
