CURATORSHIP: A CAUSE OF OR CURE TO CONFLICT?

Ageing is privilege denied to many. However, it is unfortunately accompanied by mental and/or physical decline. This decline leads to vulnerability. The court, as a guardian of the vulnerable, has the power to come to the aid of vulnerable people whose plight is raised before it.

In the case of Tibshraeny v Tibshraeny an application was brought, and opposed, for the appointment of a curator bonis to assist an elderly businessman and restaurant owner in managing his financial affairs. This case displays how conflict can arise around the decision of what is really in an elderly person’s best interests, and how the court should assess these conflicting views to ensure that justice ultimately prevails. Further, the case highlights how wealth can cause a deep divide between family members – resulting in a cry for objective, judicial intervention.

Read the case here:

https://www.saflii.org/za/cases/ZAWCHC/2025/117.html

What are curator’s ad litem and bonis?

The case involves Mr Jens Tibshraeny, the owner of the popular Cape Town Waterfront restaurant, Willoughby’s, and his family. The applicant is Mr Darren Tibshraeny, the son of Mr Jens Tibshraeny. Darren sought the appointment of a curator ad litem, followed by the appointment of a curator bonis. A curator ad litem is someone appointed by the high court who represents a person in a specific legal proceeding where this person has been deemed incapable of managing their own legal affairs. The curator ad litem assists the court by investigating the situation on behalf of the patient and reporting back to the court and Master of the High Court. Subsequently, a curator bonis can be appointed. A curator bonis is also someone appointed by the high court, and their function is to manage the financial affairs of the person who is deemed incapable of managing those affairs themselves.

In 2023, the son noticed significant cognitive decline in his father, a 79-year-old man with notable assets, including the popular restaurant. The son averred that his father’s mental health challenges worsened over time. He described incidents where his father was acting outside his usual character, posed a risk to himself, practised unsafe driving, and was not able to exercise the functions of his business. This depiction of the father’s condition was confirmed by two medical practitioners. The father was taken to see a physician, whereafter he was referred to see a psychiatrist as well. A conclusion was reached that the father showed signs of a major neurocognitive disorder, known as dementia, and both medical practitioners were of the view that a curator should be appointed to provide support and protection with respect to his financial affairs. His son applied to court to have a curator appointed, but the father opposed this application.

Daughter and aunt exploiting the father’s vulnerability

According to the father, allowing for a court-appointed professional to handle a person’s financial affairs could amount to a serious infringement of his autonomy, dignity, and privacy. However, if the people surrounding, and supposedly helping, the person with declining cognitive ability does not have this person’s absolute best interests at heart and are potentially exploiting his vulnerability, a duly appointed curator would safeguard the person’s autonomy and dignity. The family net is woven intricately, and it seems to have caught all but the son, who appears to be swimming against the stream. The restaurant is managed by the nephew, whilst the daughter as well as the aunt, and both their husbands, has moved into the father and mother’s home to care for them. The arrangement could be viewed as an altruistic act by family members to ensure that the father is being cared for and assisted, but it also allows for more control over his decisions, his estate, and, ultimately, his life.

The son believes that his sister, along with his aunt, consistently tries to isolate him from his father. He further believes that the fear is being instilled in his father that he is trying to steal the business. The son became extremely concerned after he found out that his father’s “caretakers” cancelled his follow-up medical appointments regarding his mental health and cognitive abilities without scheduling any other appointments with medical professionals. Another worrisome occurrence involved the father and his daughter showing up at the psychiatrist’s office, without an appointment, and demanding the contents of the father’s file. Furthermore, the father has replaced his trusted attorney of two decades with his daughter’s attorney.

Son has self-serving interests

On the other side, the father and his nephew submitted affidavits in which they state that the son has self-serving interests in the curatorship application. He has been occupying an apartment that is owned by a Trust of which the father and mother are trustees, without paying rent and refusing to vacate. It has also been raised that the son dines at the restaurant without paying the bills and he would act as if he were an owner or manager of the business. However, these allegations, even if true, does not affect the legal question that was put before the court in this matter. The question to be determined was whether the father suffers from diminished mental capacity, resulting in him not having the ability to make informed decisions regarding his affairs, both personal and financial.

The judgment, penned by Judge Da Silva Salie, demonstrates how the court evaluates the information before it, especially in the form of affidavits and reports, but also how it can take pro-active steps to obtain clarity when necessary. As judges themselves are not experts within the different professional fields that cases before them concern, it is reassuring that the court can ask for further expert assistance out of its own accord to ensure that the information before it is processed and understood correctly. The father raised concerns about the reports of the medical practitioners that recommended a curator to be appointed. The criticism included the fact that the medical practitioners only saw the father once and could not have reached such conclusion only based on one appointment. He also questioned the fact that they did not take collateral information by his family, caretakers, or anyone else in his life into account. The court appointed an independent medical professional to review the reports and to enlighten the court as to whether the assessments and reports were of such nature that a recommendation could have been made. The reports were found to be sound. Although the judge did later mention that this finding was not decisive, it nevertheless exhibits the judicial determination to be sure of the facts – a commendable approach.

Court sceptical of the “trusted infrastructure”

The court was also sceptical of the father’s “trusted infrastructure” of supporting people, which includes his sister and his daughter along with their husbands, his new attorney and his accountant. The scepticism arose from the fact that his long-term lawyer was replaced by his daughter’s close associate, as well as his daughter and her husband’s role in the unarranged visit to the psychiatrist’s office where the father’s file was demanded in a hostile manner. It was also concerned that the trusted network cancelled the follow-up appointments with the psychiatrist. The court firmly held that, regardless of a supporting infrastructure, it must still be satisfied that the father can understand and make informed decisions regarding his personal, legal and financial matters. The assurance that he has advisors and caretakers did not cure the court’s concerns regarding his diminished capacity as well as the recommendation by two medical practitioners that a curator should be appointed. The court emphasised that the ability to make informed decisions is “a cardinal basis of autonomy,” and it would not allow the father’s autonomy to land in the hands of his trusted infrastructure, as this would defeat the purpose of rejecting a curator’s appointment.

Furthermore, the court raised another interesting consideration, in that it was supportive of appointing various curators in light of the complexity and size of the affected estate and business. This speaks to the court’s genuine concern for a person whose capacities are compromised and shows that it will go to great lengths to ensure that the matters of the person involved in a curatorship are being dealt with at the highest possible standard.

On a balance of probabilities

Finally, the last highlight of this case to be mentioned here is the fact that the court acted with laudable objectivity. This is evident from its examination of the allegations of ill-intent raised against both sides. The court held that the appointment of a curator bonis will not unduly benefit or prejudice either of the siblings or either side of the disputing parties. Such appointment will rather keep (potential) self-interest and manipulation from either side at bay and ensure that the father’s estate is protected and managed in his best interests.

The court concluded that it was not convinced that the father was capable of making informed decisions anymore. It was satisfied that evidence, on a balance of probabilities, supports the appointment of a curator. This case is evidence of how families can be torn apart by wealth, and the heart-wrenching consequences of age-induced vulnerability. The good news is that the legal system can step in to ameliorate tensions, but it does so with caution to never overstep into a person’s autonomy and dignity – unless the intervention will serve to protect these fundamental rights.