Chapter 1

1.1 What is a Curator bonis ?

A Curator bonis is a person appointed by the Court to manage the financial affairs of another person who in the opinion of the Court is unable to manage those affairs for himself or herself, or to give adequate directions to others for their management. Such incapacity may result from mental illness, mental defectiveness, brain damage or severe physical handicap. Curators may also be appointed in certain circumstances to children and young persons under the age of majority (16) and to missing persons. A person to whom a Curator bonis is appointed is referred to as a Ward.

1.2 What are the legal requirements on a Curator bonis ?

A Curator bonis is appointed by the Court and is ultimately responsible to the Court for his actions in relation to the Ward's estate.  His powers and responsibilities are governed principally by the Judicial Factors Acts of 1849, 1880 and 1889.  A Curator bonis is also a trustee for the purposes of the Trusts (Scotland) Act 1921 and 1961.  In the exercise of his functions the Curator bonis is accountable to and subject to the supervision of the Accountant of Court.

1.3 Who can be appointed as a Curator bonis ?

The legal and accounting requirements placed on a Curator bonis are quite complex and demanding and the court therefore normally prefers to appoint a professional person, ie., a solicitor or accountant. Sometimes, however, the court will appoint a non-professional person, usually a close relation of the Ward, if satisfied that such a person is capable of properly performing all the required duties, possibly with some professional assistance.

1.4 Is the appointment of a Curator bonis always necessary when a person is incapable of managing their own affiars ?

If the person's assets are very small, eg., pension and/or Social Secuirty benefits only and if there is someone suitable to administer those assets on behalf of the person, it is not necessary to have a Curator bonis appointed. If the person is in a long stay hospital the hospital authorities are allowed to hold and administer up to £10,000 on behalf of a patient, provided the authority obtains the consent of the Mental Welfare Commission for Scotland.

1.5 When is the appointment of a Curator bonis necessary ?

(i) Where a person receives a substantial award of damages whether as a result of Court action or following a claim on the Criminal Injuries Compensations Board and that person suffers from mental incapacity, either pre-existing or as a result of the accident or injury.

(ii) Where the recipient is a child under 16, the court or the board may insist on a Curator bonis being appointed to manage the award on behalf of the child until he or she reaches the age of majority (age 18).

(iii) If funds are held by a Bank or Building Society or in Investments or are held by an Executor to an estate in which the mentally incapacitated person has an interest, any of these authorities may quite properly refuse to release the funds in their charge except to a Curator bonis. Also where a signature to a legal document is required, eg., if a house has to be sold, again the only person legally able to sign is a Curator bonis. Since no-one, except a hospital authority in certain circumstances, is legally entitled to handle the money or assets of a mentally incapacitated person, if these assets are substantial it is desirable to have a Curator appointed.

1.6 Is there an alternative to the appointment of a Curator bonis?

No. If there are funds to be managed and the circumstances described at 1.4 above do not apply then the appointment of a Curator bonis is essential, unless the incapax has appointed an Attorney. An Attorney is a person appointed by another (the granter) under a Contract of Mandate or agency to deal with some or all aspects of the granter's property and financial affairs. The powers conferred are usually very wide especially where the purpose of the contract is to enable the Attorney to manage the granter's property and financial affairs after the latter's incapacity. Any Power of Attorney granted since 31 December 1990 continues to be effective after the granter's incapacity unless the contract contains provisions to the contrary.

1.7 Are Curators bonis only appointed to mentally incapacitated persons ?

While this is the most common reason, a Curator may also be appointed to a child under the age of 18 or to manage the financial affairs of a missing person. A Curator may also be appointed to a person who while mentally sound is so physically disabled as to be incapable of managing or directing the management of their own affairs.

1.8 How Long does a Curatory last ?

If the Ward is a child the Curatory will come to an end when the child reaches the age of 16. In the case of a mentally incapacitated person the Curatory will remain in force until the Ward either recovers or dies.

1.9 Can the Curatory be recalled ?

If it is considered that the Ward has recovered sufficiently to be able to manage his or her own affairs, an application for recall and discharge can be made to the Accountant, said application being supported by the appropriate medical certificate.  Alternatively, an application may be made to the Court asking for the Curatory to be recalled.

1.10 Change of Curator

A new appointment must be effected if the Curator dies or wishes to resign due to retirement, ill-health etc. Normally the Curator's law agents, or his own firm if he is a solicitor himself, will attend to this but failing this the Accountant of Court will take the necessary action upon being advised that the Curator has ceased to act for whatever reason.