Your Parent Can't Manage Their Finances Anymore. Now What? A Cape Town Family's Guide to Curatorship

You noticed it months ago — the missed bills, the confusion over dates, the bank statements that don't add up. For a while you managed around it, explaining things twice, stepping in quietly where you could. Now it's beyond that. Your parent, your spouse, or someone else close to you can no longer manage their own financial affairs. You need legal authority to act on their behalf. But you don't have it — and you're not sure how to get it.

The situation many families find themselves in is this: they assume that being a close relative gives them the right to step in and manage an incapacitated person's finances. It does not. Banks will not accept instructions from a family member acting without formal authority. The Deeds Office will not transfer property. Financial institutions will not redeem investments. Without a court-ordered appointment, a well-meaning family member managing their parent's affairs is operating without legal authority — and creating potential personal liability in the process.

There is a common misconception that a power of attorney solves this problem. It does not — at least not once capacity has been lost. Under South African common law, a general power of attorney lapses automatically the moment the person who granted it loses mental capacity. The reasoning is straightforward: you cannot authorise someone to act on your behalf if you no longer have the legal capacity to authorise anyone to do anything. If a power of attorney was signed years ago while the person was well, it ceased to have legal effect the moment their capacity failed — even if no one was informed and even if it has been acting on it since.

What curatorship provides

Curatorship is the mechanism South African law provides for this situation. It is a formal appointment made by the High Court, under the Mental Health Care Act and the common law, placing the management of an incapacitated person's affairs in the hands of a court-appointed curator who acts under ongoing judicial and Master's oversight.

There are two distinct roles. A curator bonis is appointed to manage the person's property and financial affairs — their bank accounts, investments, properties, and contractual obligations. A curator ad personam is appointed to make decisions about the person's physical welfare — where they live, what medical treatment they receive, how their daily care is managed. It is common for both appointments to be made simultaneously, and often to the same person.

The curator is not free to do as they see fit. They must act in the best interests of the person under curatorship, within the terms of their appointment, and they must render detailed annual accounts to the Master of the High Court. Significant transactions — selling a property, making investments, giving donations — typically require prior authorisation from the Master or the court. This oversight exists precisely because the person under curatorship cannot protect their own interests.

The application process

Curatorship applications are brought in the High Court with jurisdiction over the area where the person ordinarily resides. The application requires medical affidavits from qualified practitioners setting out the nature and extent of the incapacity, supporting evidence about the person's affairs and assets, and a proposed curator who is willing and suitable to act. The Master of the High Court is given an opportunity to investigate and report on the suitability of the proposed appointment before the matter goes before a judge.

There is no standard timeframe. The application moves at the pace of the High Court roll and the curator ad litem's investigation, and once the order is granted, the letters of curatorship are issued by the Master's Office — where serious backlogs, including in Cape Town, can add significant delay. Urgent applications — where, for example, financial decisions cannot wait — can sometimes be heard more quickly, but the same evidentiary requirements apply. There is no shortcut past the medical evidence and the Master's involvement.

One question families often ask is whether there was anything they could have done earlier to avoid this situation. The answer is yes — but only if the person still had capacity at the time. A comprehensive special power of attorney, or a properly structured trust into which assets are transferred while the person is well, can provide a workable alternative to curatorship if the planning happens before capacity is lost. Once it is lost, the court process is the only formal path.

If you are navigating this situation now — whether the incapacity has just become apparent or has been developing for some time — the practical starting point is obtaining medical assessments and gathering documentation about the person's assets and affairs. We can guide you through what is needed and manage the application on your behalf.

This article is part of our Estates & Trusts practice. If you are dealing with this situation, speak to one of our directors directly.

Disclaimer: This article is general information, not legal advice. The law is stated as at the date of first publication and may since have changed. Reading it does not create an attorney–client relationship. For advice on your specific circumstances, speak to one of our directors. See our full disclaimer.