Affairs of a minor must be administered by curator

THERE is nothing as devastating as getting news that your child is brain damaged after a horrible road accident.

Most parents, like Jwelane Chele, would enlist the services of an attorney to get compensation because they want what is best for their children.

But what parents fail to understand is that in cases where a child is brain damaged and is declared mentally incapable of handling his affairs by the court of law, a curator who will handle the affairs, including money, of the minor, may be appointed.

And in many cases this is a decision taken by the courts and it is final - something that makes some parents unhappy.

Chele's son, Paballo, was in an accident and he sustained a head injury when he was 7-years-old. She solicited the services of Ackerman Swarts Attorneys, who successfully lodged a road accident claim on her son's behalf.

Though it took 14 years to finalise the case, the law firm eventually got a good settlement for Paballo in October last year.

Because he was declared mentally incapable of handling his affairs, a curator was appointed to handle his payout.

Chele found this decision unacceptable and as a result her son has not received any allowance from the attorneys - not because the attorneys are unreasonably withholding the funds but because she refuses to accept the court's decision.

The court ordered that Paballo's R2.6-million should be handled by trustees.

Chele approached Consumer Line after her, attorney had received payment from the Road Accident Fund in December last year.

She claimed that the attorney had told her they would take their legal fees and then deposit the balance into an account of her choice.

"But after taking their R400,000, they then referred me to some legal documents I did not remember signing," she said.

She said her consent to have a curator appointed was not properly acquired because she was made to sign documents without getting any explanation of what she signing for, and she was not given a chance to read the documents she was asked to sign.

Chele said in terms of the Children's Act, she has the power to control her son's millions, and that had she been advised properly, she would not have opted for an appointment of a curator.

Johan Swart of Ackerman Swart Attorneys confirmed that their law firm obtained instructions to administer the claim in 2007. He said medical reports they obtained from several specialists for medical examinations confirmed that her son had a permanent brain damage and that he could not handle his financial and other affairs.

He said the medical reports recommended that a curator be appointed for Chele's son.

Swart said this was discussed in details with Chele on several occasions and noting that she was acorrectional services officer, they had no doubt that she had proper knowledge of how the court functioned.

He said the matter was eventually settled in the Pretoria High Court and Judge Legodi came to a conclusion that Paballo's third party capital should be protected.

There were three options, but the judge ordered that the capital be paid to the trustees of a trust to be established for her son.

Swart said during and after the trial, they consulted with Chele but she refused to accept the court order.

"She is adamant that she alone should be in control of her son's money.

"Although we understand her frustration, we cannot act against an order issued by a judge of the high court," Swart said.

He said under these circumstances, a parent is usually appointed as one of the trustees of a special trust together with at least one person who has certain legal knowledge.

"We were ready to draw up the trust documents in November, but Chele refused to participate in the process.

"Unfortunately we know no other person who will accept the responsibility. Under the circumstances we cannot move forward with the registration of the trust," Swart said.

Swart said he was now preparing an application to request further instruction from the court.

Michael De Broglio of De Broglio Attorneys said in cases such as these, the starting point is the c ourt not parents or lawyers.

De Broglio said the court is the upper guardian of all minors.

"(The) Court's decision will stand whether people like it or not.

"We must all be aware that, unfortunately, many parents have squandered or invested poorly money intended for children. It (court's decision) is all about what is in the best interests of the child - not the parent," De Broglio said.

He said attorneys cannot simply ignore the parent's instructions and go ahead and decide what they think may be appropriate in the circumstances.

"In terms of section 18(3)(a) of the Children's Act, a parent, who is the natural guardian of the minor, does have the power to control the child's money," he said

He said there are many cases where the parents would never do as good a job as trained financial professionals.

"Then we try and persuade them to do so (appoint a curator) and then get them to sign a consent to the money being put into a Trust, wherein it is clear that they fully understand how a Trust works.

"If parents refuse to consent thereto - bear in mind that lawyers, as officers of the court, have a principal obligation to the child - if it appears that the circumstances are such that the child's money might not be properly protected by the parents, a court may well decide, regardless of the parent's wishes, to establish a Trust or appoint a curator."

"The court has the final decision and as much as it makes many parents unhappy, there surely cannot be a problem with a professional assisting and making financial decisions in the best interest of the child," De Broglio said.

Though Chele was not happy about the outcome of the case, she has now agreed to cooperate with her attorneys.