Who Can Manage Your Money If You Lose Mental Capacity in South Africa?
A spouse, adult child or trusted adviser does not automatically acquire authority over your financial affairs when you lose mental capacity. For personal assets, a court-appointed curator bonis or, where the Mental Health Care Act applies, an administrator appointed through the Master may be needed. Existing trustees can administer trust assets only within their lawful authority. Knowing the passwords, being next of kin and having authority to act are different things.
The practical task is to establish who may make which decisions, over which assets, and how essential payments continue while authority is being established. This is not a reason to remove control from someone merely because they are older, ill or making decisions relatives dislike.
First distinguish help from substituted decision-making
A person who understands the relevant decision may want help reading statements, organising payments or communicating with a provider. That is different from someone else taking over because the person can no longer give valid instructions. The ability to decide is not determined by a family vote, a diagnosis alone or an investment balance.
In Tibshraeny v Tibshraeny (18 March 2025), the High Court explained the existing South African position: an ordinary power of attorney becomes invalid when the principal loses the mental capacity needed to understand it. The judgment discusses enduring powers as a law-reform proposal, not a generally available statutory solution. A signed document labelled “enduring” cannot be assumed to overcome that rule. Judgment, paragraphs 58–62
That does not make an ordinary mandate useless while the person has capacity. It means it cannot be treated as the entire incapacity plan. Nor can a new authority reliably be created by asking someone who already lacks the necessary understanding to sign another form.
Who can do what?
| Person or mechanism | Potential role | Boundary that must be established |
|---|---|---|
| Family member or nominated contact | Supply information, arrange assessments, organise records | Relationship or contact status is not general transaction authority |
| Agent under an ordinary power of attorney | Act within a valid mandate while the principal has the required capacity | Do not assume the mandate survives mental incapacity |
| Curator bonis | Manage financial/property affairs within the appointment | Court process, authority documents and oversight; not unrestricted personal discretion |
| Administrator under the Mental Health Care Act | Manage property where the statutory route applies | Qualifying conditions and the Master's appointment; not a universal substitute for curatorship |
| Trustees of an existing trust | Administer the trust's property under its deed and law | Not the founder's separately owned bank account, house or personal portfolio |
| Investment adviser or discretionary manager | Perform the service permitted by a valid appointment | A portfolio mandate does not automatically authorise care spending, borrowing or estate changes |
The Master's guidance distinguishes the broad common-law curatorship route from the Mental Health Care Act procedure for specified mental illness or severe/profound intellectual disability. It also describes supervision and administration accounts. Which route applies needs case-specific legal assessment; “cheaper than court” is not an eligibility test. Department of Justice: curators and administrators
A curator ad litem generally assists the court in the proceedings; that role should not be confused with the subsequent management of property by a curator bonis. Court process and actual appointment documents matter more than the shorthand “we have a curator”. The Justice training note on curators and administrators also distinguishes property administration from personal-welfare decisions.
A large estate can still have a payment problem
Consider a hypothetical couple with R2 million of investments in one partner's sole name. That partner loses the capacity to give financial instructions. The other partner has R75,000 of their own accessible cash and R30,000 a month of their own spendable income. Essential household and care costs are R45,000 a month.
The immediate gap is R15,000 a month. R75,000 covers five months of that gap if costs and income are unchanged. For this stress test, assume the sole-name investments cannot yet lawfully be accessed by the other partner. They remain valuable assets, but they are not included in the accessible reserve.
| Continuity ledger | Amount counted now | Why |
|---|---|---|
| Other partner's accessible reserve | R75,000 | Existing lawful control assumed |
| Other partner's net monthly income | R30,000 | Already payable to that partner |
| Household and care spending | R45,000 monthly | Hypothetical current budget |
| Monthly funding gap | R15,000 | Spending less available income |
| Sole-name portfolio | R0 in the immediate reserve | Value is R2 million; access is unresolved, not value lost |
| Reserve divided by monthly gap | 5 months | Arithmetic runway, not a court-processing forecast |
If costs rise to R55,000, the gap becomes R25,000 and the same reserve covers three months. No investment return or legal completion date is assumed. A family claiming “we have years of cash” after adding every account balance may therefore be answering the wrong question.
The comparison does not recommend transferring assets to a spouse or child. Transfers introduce ownership, tax, creditor, marital and estate consequences. It identifies the amount of lawfully accessible support that needs to be considered alongside the legal process.
Trust continuity works only where authority and funding meet
An established, properly administered trust may continue operating through authorised trustees when one person cannot participate, depending on the deed and remaining decision-making arrangements. Under section 6 of the Trust Property Control Act, trustees require the Master's written authority to act. The deed's appointment and decision rules also matter. Trust Property Control Act, sections 6 and 9–12
But a trust cannot pay from property it does not control. A personal loan owed by the trust to the affected person is also a different asset from the trust's bank balance. Creating or funding a trust is not an emergency workaround once capacity has already been lost.
The trust estate-planning article considers whether the structure serves a genuine purpose. Here the narrower test is operational: can the authorised people still form a valid decision, access the correct account and approve the required payment?
Plan the handover while instructions can still be given
A useful financial authority record identifies the legal owner of each asset, the institution, current authorised signatories, the governing document, where the original is held and the institution's contact for incapacity cases. It should also distinguish permission to receive information from permission to transact.
Test one ordinary task, such as paying a care invoice, without moving money unnecessarily. Who receives the invoice? Who checks it? Who is legally authorised to instruct payment? Which institution confirms the documents it will require? What happens if that person is unavailable too?
Keep essential records accessible through a secure agreed process rather than circulating passwords or entire identity files. The goal is a verified route to the institution, not an informal ability to impersonate the account holder. A trusted contact can help the institution understand a problem without being granted powers the law does not give them.
Family governance still matters. The person managing payments may be different from the person arranging care. Record how expenses will be reported, how conflicts will be handled and who reviews transactions. Transparency protects the affected person as well as the relative doing the work.
If capacity is already in doubt
The useful first step is a qualified legal and clinical assessment of the actual situation, together with contact through the institution's verified incapacity process. Do not solve a blocked instruction by backdating a mandate, sharing credentials or pressuring the person to sign. Urgent care and protection needs may require urgent legal assistance; this article is not a procedure for bringing an application.
A claim that authority already exists should be checked against its scope and current validity. Financial authority does not automatically include making a new will or deciding medical treatment. Nor does an expected inheritance entitle the future heir to spend assets now.
After an appointment, the handover is not finished until the relevant institutions recognise the authority and the person administering the money understands the reporting, approval and cost obligations. Ask for a written operating budget and a way for appropriate parties to review payments. Oversight is part of protecting the person, not an inconvenience to bypass because the family agrees.
ClearGauge's judgement is that a workable plan connects three things: lawful authority, usable records and accessible funding. An excellent document without a payment route is incomplete. So is a well-intentioned relative with account access but no valid authority.
For this issue, legal advice on authority comes before an investment-product decision. A Financial Clarity Review may help organise the funding and household dependencies, but it does not confer legal authority or replace the lawyer or Master's process. ClearGauge offers paid reviews and has a commercial interest in enquiries; no review is required to take the authority record to an appropriate legal adviser.
Sources and scope
Sources reviewed 7 September 2026. The 2025 judgment supports the ordinary-power limitation; historical law-reform proposals are not presented as enacted law. Justice sources explain the available mechanisms, not eligibility or processing time for a particular person. Examples are invented current cash budgets, with no claim about investment performance. This article covers South African financial affairs, not foreign enduring powers, medical consent or a diagnosis of capacity. It is general information, not legal or personal financial advice.