Discretionary Living Trusts A legacy for generations

Written by Trust Specialist, Mervin Messias, it is the culmination of knowledge and expertise that has been acquired over many years’ study and practice of Trust law.

The author recommends the use of Trusts as part of estate planning because they provide solutions to many potentially complicated problems related to asset protection, succession planning, and disability protection. Many little-known benefits of Trusts are revealed to help protect your hard-earned wealth for generations to come. A Trust circumvents the whole process of winding up an estate, together with its potential delays, hassles and frustration.

In fact, a Trust deserves pride of place in any estate plan. It means business as usual, even after death, with no executor, executor’s fees or estate duty.

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    Seven scary reasons why c...


    Seven scary reasons why curatorship should be avoided

    Seven scary reasons why curatorship should be avoided

    Curatorship and covid-19 have something in common.

    Both are potentially dangerous, debilitating, and costly to fight and if your dodging skills are not sufficiently honed with relevant information, you may rue the day you didn’t pay attention.

    If you (as an adult) are declared mentally incompetent by a medical specialist, the Power of Attorney you signed with someone you trust will have as much legal clout as your favourite children’s bedtime story.  And if the costs of setting up a Trust scared you, brace yourself for the court costs required to set up (or dismantle) curatorship.

    You will find yourself with fewer rights than a minor.

    Say your mental incapacitation is temporary, you have a severe depression or PTSD episode that renders you incapable of functioning normally for a specific period, that Power of Attorney is useless.  A curator will need to be appointed.

    Papers to appoint a curator will have to be drawn up by an attorney and taken to Court by an advocate.  If the judge is satisfied, s/he will appoint a curator ad litem (an interim curator) to find a suitable candidate, usually someone with bookkeeping or accounting skills.  A judge will then be required to approve the choice made by the curator ad litem, providing the candidate is prepared to accept the task.  The curator will be remunerated for the performance of his/her duties, usually a percentage of your capital and prescribed tariffs will apply on income received and/or distributed.

    And, get this.  If you have R10 million in capital and R8 million in debt, guess which figure will determine the fees?  If you guessed the difference (i.e. R2 million), you’re deluded.  If you guessed, R10 million, you don’t need a curator!  Add the legal and curator fees to your medical expenses and ponder the escalating ‘ka-ching’ effect for a moment…

    Here are some of the realities of the Court Order given to the Curator/Curatrix if you are the patient:

    1. Consent to any medical or surgical treatment you may need.
    2. Your detention in or removal to any hospital or similar institution.
    3. To receive, take care of, control and administer all your assets.
    4. To carry on or discontinue, subject to any law which may be applicable, any trade, business or undertaking of yours.
    5. To let, exchange, partition, alienate and for any lawful purpose to mortgage or pledge any property belonging you, or in which you have an interest.
    6. To incur expenditure in respect of the improvement of any property you own by means of building or otherwise.
    7. To expend any moneys belonging to you on the maintenance, education or advancement of any relative of yours or any other person wholly or partially dependent on you, to continue such acts of bounty or charity exercised by you as the Master, having regard to the circumstances and the value of your estate, considers reasonable.

    But what if the curator is not what he/she appears to be with respect to integrity and has another agenda with all your assets at his/her disposal?  Mistakes happen.  Curators can oppose any challenges relating to a breach of trust or competency levels that call for his/her removal and tie you up in a protracted legal battle.  While you, perhaps now recovered, have no access to any of your assets.  Just one bang of the judge’s gavel has sealed your fate.

    To put it bluntly, you’re screwed.


    While you have all your faculties, accept that the above scenario could become a reality one day (particularly if dementia or Alzheimer’s run in your family).  Pre-empt the potential disaster and think about putting your assets into a Trust.  It will dispense with the crisis of having a complete stranger in full control of your affairs and assets and will cost less in the long run.  Prioritise the protection of your assets, quality of care and peace of mind and arrange an appointment to see me.

    I will talk you through everything, answer all your questions and discuss a tailored alternative by way of setting up a Trust that negates this palpitation-inducing curatorship scenario.  Together we’ll devise a more secure solution that will leave you in the hands of people you trust – personally and financially.

    Quotation available on request.

    DR MERVIN MESSIAS – JD (Juris Doctor) / BA, LLB University of the Witwatersrand
    TEP (Trust & Estate Practitioner) / MTP Master Tax Practitioner – S.A.

    To book an appointment, please contact my Executive Assistant, Jutleth Mkhonza.  Email or call +27 (0) 11 783 0108