It happens from time to time that due to a mental breakdown or some kind of medical condition a person is not able to manage his or her own affairs. In such a case the person is sometimes at a risk of suffering serious loss. A curator ad litem may in such a situation be appointed by the court to investigate whether the person is capable of managing his or her affairs.
It is always in the court's discretion to appoint a curator or not. The court does not regard it as proper if a person himself applies to be declared incapable of administrating his own affairs and be placed under curatorship, because if he or she is incapable of managing his or her own affairs then, strictly speaking, he or she has no locus standi in iudicio and is not entitled to make the application.
I had a divorce case where my client was under a tremendous amount of stress. She had been physically assaulted by her husband on numerous occasions. The two children had been living with her, and her husband had been paying very little maintenance.
Different people react differently to getting divorced. To some people it is the end of the world, while to other people this is their ticket to freedom. In this case of mine I was very concerned about my client as she told me that she had been admitted to an institution for depression a few months prior to the divorce action being instituted.
Halfway through the divorce case, my client was unfortunately admitted again into a hospital for depression. The abuse from her husband just became too much for her.
When someone is admitted to an institution, the Mental Health Care Act 17 of 2002 is designed to protect the interests of Mental Health Care users. In the Western Cape, the Mental Health Review Board (Western Cape) is appointed by this Act. A patient at a hospital who is an involuntary inpatient and a Mental Health Care user can give permission to the Review Board to do certain things.
In my case my client asked the Review Board to contact me to discuss whether we should rather have a curator ad litem appointed to represent her in the divorce. The Board was of the view that my client was not capable of making an informed decision, and that this would influence her decision in the divorce case.
I agreed with the Board, based on the evidence, that a curator ad litem be appointed. This party would be able amongst other things to manage the client's finances and assets on her behalf. My client's mental state was just too fragile to look after these affairs herself.
A person who has been declared incapable of administrating his or her affairs and to whom a curator has been appointed can manage his own affairs when he is mentally and physically capable of doing so. Lots of people suffer from depression and other mental illnesses. Whilst going through a divorce, the depression sometimes becomes a lot worse unfortunately. In such instances, the best solution is the appointment of a curator ad litem.
This article was written by Cape Town divorce lawyer, Peter M Baker
petermbaker@yahoo.com
Mental instability of a spouse