The court can step in and help protect the interests of vulnerable people like older people with conditions such as dementia. Photo: Andrew Lichtenstein/Corbis/Getty Images
Ageing is sometimes accompanied by mental decline, which leads to vulnerability. The court, as a guardian of the vulnerable, has the power to come to their aid.
In the case of Tibshraeny v Tibshraeny an application was brought, and opposed, for the appointment of a curator bonis to assist Jens Tibshraeny, 79, the owner of the popular Cape Town Waterfront restaurant, Willoughby’s, in managing his financial affairs.
This case displays how conflict can arise around the decision of what is in a vulnerable person’s best interests, and how the court should assess these conflicting views to ensure that justice prevails. Further, the case shows how wealth can cause a deep divide between family members.
The applicant is Darren Tibshraeny, the son of Jens. 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, Darren noticed significant cognitive decline in his father. He described incidents where his father was acting outside his usual character, posed a risk to himself, drove unsafely and was not able to exercise the functions of his business.
This depiction of Jens’s condition was confirmed by two medical practitioners. He was taken to see a physician, whereafter he was referred to see a psychiatrist as well. A conclusion was reached that Jens 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.
Darren applied to court to have a curator appointed, but the father opposed this application. According to Jens, 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.
But, if the people surrounding and supposedly helping the person with declining cognitive ability does not have this person’s best interests at heart and are potentially exploiting his vulnerability, a duly appointed curator would safeguard the person’s autonomy and dignity.
The Tibshraeny family net is woven intricately, and it seems to have caught all but Darren, who appears to be swimming against the stream. The restaurant is managed by the nephew, while the daughter, the aunt and their husbands have moved into the father and mother’s home to care for them. The arrangement could be viewed as an altruistic act to ensure Jens is being cared for, but it also allows for more control over his decisions, his estate and, ultimately, his life.
Darren believes that his sister and his aunt consistently try 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. Darren became concerned after he found out that his sister and her husband cancelled his father’s follow-up medical appointments without scheduling any other appointments.
Another worrisome occurrence involved his father and his sister 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.
On the other side, Jens and his nephew submitted affidavits in which they state that Darren 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. Darren also allegedly dines at the restaurant without paying the bills and he would act as if he were an owner or manager of the business.
But, these allegations, even if true, do not affect the legal question that was put before the court. 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, by Judge Da Silva Salie, demonstrates how the court evaluates the information before it and what steps it can take to obtain clarity. As judges are not experts within the different professional fields that cases before them concern, the court can ask for expert assistance.
Jens raised concerns about the reports of the medical practitioners that recommended a curator to be appointed. The criticism included that the medical practitioners saw him only once and could not have reached such a conclusion.
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, which were found to be sound.
The court was sceptical of the father’s “trusted infrastructure” of supporting people, which includes his sister and daughter and their husbands, his new attorney and his accountant. The scepticism arose because his long-term lawyer was replaced by his daughter’s close associate and because his daughter and her husband cancelled the visit to the psychiatrist and demanded his file in a hostile manner.
The court 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 advisers and caretakers did not cure the court’s concerns regarding his diminished capacity.
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, because this would defeat the purpose of a curator’s appointment.
The court was supportive of appointing various curators in light of the complexity and size of the affected estate and business. This shows the court will go to great lengths to ensure that the matters of the person are being dealt with at the highest possible standard.
The court acted with laudable objectivity. This is evident from its examination of the allegations of ill-intent raised from 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. 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, and does so with caution to never overstep into a person’s autonomy and dignity unless the intervention will serve to protect these fundamental rights.
Wilmien van Biljon is a candidate attorney and Kaamilah Paulse a director at Herold Gie Attorneys.