A BRIEF OVERVIEW OF THE PROCESS CESS FOR RELATING APPLICATION FOR THE APPOINTMENT OF A CURATOR AD LITEM AND CURATOR BONIS IN NAMIBIA

Prepared by:

Contents: 1.

Introduction

2.

Curator ad litem and Curator Bonis Distinguished

3.

Application for Curatorship (Rule 81)

4.

Submission of the Application

5.

First Ex Parte Hearing (Rule 82)

6.

Second and Final Ex Parte Hearing

1.

Introduction

request relating to the Our office has receintly received a number of requests appointment ment of curators on behalf of persons in Namibia who are no longer able to manage their own affairs. A curator is appointed in terms of Rule 81 to 83 of the Rules of the High Court of Namibia. In Namibia, during an application for curatorship, two types of curators are appointed; namely, the curator ad litem and the

curator bonis, each having their own role and responsibilities.

1 Charles Cathral Street P.O. Box 81588 Olympia, Windhoek, Namibia e-mail: mail: [email protected] Tel: +264 61 247 435/7

2.

Curator ad litem and Curator Bonis Distinguished

In Namibia a curator ad litem is defined as a legal representative appointed by court to represent, during legal proceedings, the best interests of a person who lacks the mental capacity to make decisions for themselves. The curator ad litem is therefore the first appointed curator.

Fax: +264 88 625 725 A curator bonis, the second and final appointed curator, is defined as a legal representative appointed by the court to manage the finances, property or estate or person of another person unable to do so because of mental or physical incapacity.

3.

a.

Application for Curatorship (Rule 81)

Grounds

locus

for

standi

(the

right

to

bring

the

application); In Namibia, the application for the appointment ment of a curator must be

b.

brought with the High Court of Namibia (as as the High Court is the only

c.

court in Namibia which has the authority to change the status of a

Grounds for jurisdiction of the court; The patient’s relevant information, information including his/her age and sex, full particulars of his/her means and information

person). If a person intends to approach the High Court for an order:

as to his/her general state of physical health; d.

(a) Declaring another person (the “patient”) to be o of unsound mind

The relationship,, if any, between the patient and the applicant

and not having full control of his/her her mind and as such incapable

and

the

duration

and

intimacy

of

their

association;

of managing his/her affairs; and

e.

(b) Appointing a curator to the person or property of the patient

The facts and circumstances relied on to show that the patient is of unsound mind or is not having full control of her/her mind and incapable of managing his/her own

an application should ould be filed for the appointment of a curator ad litem.

affairs; and f.

The

name,

occupation

and

address

of

the

person

suggested to be appointed by the court as the curator ad

The application is brought by means of a Notice of Motion seeking an

litem and subsequently as curator of the patient’s person

order:

or property and an indication that such person is able and o

Declaring the patient of unsound mind and incapable of managing

willing to act in these respective capacities.

his/her affairs; o

Appointing a proposed curator ad litem;

The following is important information required by an attorney to prepare

o

Granting specific powers and duties to the curator ad litem ;

an application for the appointment of a curator:

o

Granting leave to approach the court on the same papers for the appointment of the curator bonis detailing the duties and powers

1.

The residential address and occupation of the applicant;

of the curator bonis;

2.

A copy of the identity document of the patient and applicant;

o

Depicting the handling of fees, securities and costs; and

3.

Full names, contact details and addresses of all persons affected

o

Granting such further rther or alternative relief as the court deems fit.

by and interested in the application for curatorship, for example siblings or children;

This application shall be:

4.

The conditions suffered by the patient and the consequences thereof; and

(1) Ex Parte (there there will only be one party to the application); and

5.

A list of income and assets of the patient. patient

(2) Accompanied by a founding affidavit stating the following: The application and founding affidavit should be accompanied by the following:

1.

•

Supporting Affidavits

• Rule 83(3) requires the following supporting affidavits: •

rson proposed to be appointed as curator ad litem; and The person All

persons affected

by or interested

in the application

for

curatorship.

An affidavit by at least one person to whom the patient is well

The supporting and confirmatory affidavits are to be signed by the

known and contains such facts and information as are within the

deponent and commissioned by a commissioner of oaths.

deponent’s

own

knowledge

concerning

the

patient’s

mental

conditions and if the deponent is related to the patient or has a

4.

Submission of the Application

personal interest in the order sought, details etails of such relationship In terms of the practice directives of the High Court of Namibia, ex parte

or interest; and

applications are heard every Friday from 10h00. •

Affidavits

by

at

least

two

medical

practitioners

(having

no

connection to the patient or interest in the order sought), one of

5.

First Ex Parte Hearing (Rule 82)

whom should preferably be a psychiatrist, who conducted recent examinations of the patient. These affidavits should state: o

All facts observed in the examinations;

o

His/her

o

On the day of the application the High Court of Namibia may: 1.

If all papers are in order, grant the application for the

probable

appointment of a curator ad litem and direct the curator ad

duration of the mental disorder or defect observed and

litem to fulfil his/her duties and further direct him/her to

opinion

on

the

nature,

extent

and

the reasons for his/her opinion; and

file his/her report with the Master on a specified date.

Whether in his/her opinion the patient atient is incapable of

Furthermore, all prayers as outlined in the Notice N of Motion

managing his/her affairs.

will be granted;

The following information regarding the medical practitioners will also

2.

Dismiss the application; or

3.

Make such an order as the court deems fit.

be sought: →

Field of expertise (occupation);

→

Address;

assets or the person of the patient and will interview all necessary parties

→

Practice number; and

in order to draft his/her report and make the necessary recommendations.

→

Degrees obtained.

After the first application, the curator ad litem will be in control of the

After the report has been completed same will be delivered to the Registrar 2.

Confirmatory Affidavits

and Master of the High Court in Windhoek on or before the date so ordered.

Confirmatory affidavits should be provided by the following parties:

6.

Second and Final Ex Parte Hearing

This booklet was prepared by:

Once the curator ad litem submitted his/her report ort to the Master of the High Court and Registrar the Master of the High Court is required to file his/her report in terms of Rule 82(4) and a copy of same should be delivered to the curator ad litem. Thereafter the attorneys for the applicant will be able to set the matter down for a final hearing (Rule 83(1)) on the same papers as the application for the appointment of the curator ad litem . A copy of the Notice of Set Down should also be provided to the Master of the High Court of Namibia. On n the set down date the High Court of Namibia will, iif all papers are in

1 Charles Cathral Street

order, declare the patient of unsound mind and grant the application for the appointment of the curator bonis.

P.O. Box 81588 Olympia, Windhoek, Namibia

If the proposed person is appointed as curator bonis, such person is in control of the patient’s assets and estate or person.

e-mail: mail: [email protected] Tel: +264 61 247 435/7 Fax: +264 88 625 725

Should you require assistance in the appointment of a curator you are invited to contact us at the aforesaid address.

IT SHOULD BE NOTED THAT THIS DOCUMENT IS NOT INTENDED TO BE LEGAL ADVICE.

THE READER IS ADVICED TO CONSULT WITH HIS/HER

ATTORNEY BEFORE ACTING ON N THE CONTENT OF THIS DOCUMENT