When an adult loses the ability to manage their own affairs, families are often confronted with urgent and life‑altering decisions. Cognitive decline, psychiatric illness, or catastrophic injury can strip a person of the legal capacity to make financial and personal choices, leaving their assets and wellbeing exposed to risk. In South Africa, the law recognises the gravity of this situation and provides formal mechanisms to protect both the incapacitated adult and their estate.

The appointment of a Curator Bonis or Curator Ad Litem is one of the most decisive steps a family can take to safeguard the interests of a loved one who can no longer act independently. These legal instruments offer far more than temporary relief; they create a structured, court‑supervised framework that ensures the individual’s rights and dignity remain central to every decision.

Legal Incapacity and Its Consequences

Legal incapacity is not merely a medical diagnosis—it is a profound legal state with sweeping implications. When a person is declared legally incapacitated, they can no longer:

• Enter into valid contracts
• Control or dispose of property
• Make enforceable financial or personal decisions

South African law treats this loss of capacity with caution because any transaction concluded without legal capacity is inherently vulnerable to challenge. This is why incapacity requires more than family intervention; it requires formal legal authority.

Conditions That Lead to Legal Incapacity

The law considers a person incapacitated when they are unable to comprehend the nature and consequences of their decisions. This typically arises from:

• Progressive neurological conditions such as Alzheimer’s disease or dementia
• Severe psychiatric conditions recognised under the Mental Healthcare Act
• Traumatic brain injury or other serious cognitive impairments
• Developmental disabilities that prevent sound judgment in legal and financial matters

By recognising that the individual cannot give valid consent, the law creates a buffer against potential exploitation or mismanagement. It also triggers the need for court‑sanctioned intervention through curatorship.

Read: Appointing an Estate Administrator for Mentally Incapacitated Individuals

Why a Power of Attorney Cannot Protect an Incapacitated Adult

Families often turn to a power of attorney as the first line of support for managing a loved one’s affairs. While this legal tool can be effective in day‑to‑day life, its authority is fragile in the face of true incapacity.

A power of attorney is based on the principle of mandate in law, which means it only functions while the person granting the authority—the principal—understands and consents to the decisions being made on their behalf. Once they lose that understanding, the power of attorney loses its legal foundation.

The Moment a Power of Attorney Fails

When an individual becomes mentally incapacitated, the law considers them incapable of ratifying decisions or delegating authority. This triggers two immediate consequences:

• Automatic Revocation – The PoA is effectively invalid the moment the person is no longer capable of informed consent.
• Institutional Rejection – Banks, financial institutions, and other third parties can—and often do—refuse to recognise the PoA once incapacity is evident, leaving families unable to access funds or manage essential transactions.

Attempting to rely on a power of attorney beyond this point can lead to serious legal and financial complications, including the risk that contracts or withdrawals will be challenged or declared void.

The Risk of Delay

One of the greatest challenges families face is the gap between incapacity and curatorship. Without immediate legal authority:

• Bills, medical expenses, and property maintenance may go unpaid
• Investments and assets cannot be lawfully managed
• Critical decisions about care or property risk being stalled or contested

This legal void underscores why a court‑appointed curator—either a Curator Bonis or Curator Ad Litem—is the only reliable path to managing an incapacitated adult’s affairs with both security and accountability.

Curator Bonis – Safeguarding an Incapacitated Adult’s Financial World

When an adult loses the ability to manage their own financial affairs, the stakes are high. Property can be mismanaged, debts can accumulate, and opportunists may take advantage of the vulnerable. In South African law, the appointment of a Curator Bonis is the formal remedy that places a protective shield around the individual’s estate.

What a Curator Bonis Does

A Curator Bonis—literally “curator of goods”—is appointed by the High Court to take charge of the financial and property interests of an incapacitated person. Unlike an informal family arrangement or a simple mandate, this appointment carries the full weight of legal authority and is backed by court supervision.

The responsibilities of a Curator Bonis are extensive and may include:

• Managing bank accounts, paying bills, and collecting income
• Administering pensions, insurance payouts, and investment returns
• Overseeing property maintenance, rental income, or the sale of assets
• Keeping detailed financial records and filing reports to the Master of the High Court

In every decision, the Curator Bonis must act with fiduciary integrity, prioritising the incapacitated adult’s long‑term security over any other interest. This strict duty of care ensures that the individual’s wealth is neither dissipated nor exposed to abuse.

The High Court’s Role in Oversight

Appointing a Curator Bonis is not a private arrangement—it is a public legal function subject to continuous oversight. Once appointed:

• The curator’s financial decisions can be reviewed by the Master of the High Court
• Periodic reporting is required to account for the management of the estate
• Major transactions, such as selling property, often require explicit approval

This judicial framework protects against mismanagement while giving families the certainty that their loved one’s finances are under lawful, professional care.

Why Curatorship Matters

For families, the appointment of a Curator Bonis is more than administrative. It restores order in moments of legal and emotional chaos. It ensures that:

• The incapacitated adult’s lifestyle and care needs are financially supported
• Critical assets remain preserved and legally protected
• Potential family disputes over money or property are minimised through structured oversight

Without a Curator Bonis, even well‑intentioned relatives may find themselves powerless—or worse, in breach of the law—when trying to intervene in financial matters on behalf of a loved one.

Curator Ad Litem – The Legal Voice for the Incapacitated Adult

While a Curator Bonis safeguards the financial dimension of an incapacitated adult’s life, the Curator Ad Litem serves as their legal voice. This appointment exists to ensure that when the court makes decisions affecting the person’s future, their rights and interests are presented and protected with complete impartiality.

The Role and Meaning of Curator Ad Litem

Curator Ad Litem translates as curator for the lawsuit or for the case. This role is not concerned with daily management of money or property but with representation in legal proceedings.

A Curator Ad Litem is often appointed when:

• A High Court application is brought for the appointment of a Curator Bonis
• The incapacitated adult is involved in litigation, such as inheritance disputes or property claims
• Medical or psychiatric treatment decisions require judicial oversight
• The court must evaluate whether curatorship is in the individual’s best interest

By acting as a neutral intermediary, the Curator Ad Litem ensures the court is fully informed, providing an independent assessment of the person’s situation and advocating for outcomes that align with their wellbeing.

Duties and Ethical Obligations

The Curator Ad Litem has a singular focus: to serve the incapacitated adult’s best interests in the context of the case before the court. Their responsibilities may include:

• Investigating the individual’s circumstances and medical condition
• Consulting with family members, caregivers, and medical professionals
• Reporting to the court on whether a Curator Bonis is necessary and who should be appointed
• Recommending protective measures to safeguard the individual’s rights

This role is temporary but pivotal. Without a Curator Ad Litem, the incapacitated adult would enter legal proceedings without a voice, risking outcomes that may not reflect their needs or preferences.

The Power of Judicial Oversight

The appointment of a Curator Ad Litem reflects the High Court’s commitment to procedural fairness. Before a person’s financial or personal autonomy is transferred to another, the court requires a neutral party to confirm that:

1. The individual is genuinely incapacitated
2. Curatorship is both necessary and proportionate
3. The proposed curator is suitable and trustworthy

This process ensures that curatorship is never granted lightly, balancing the individual’s constitutional rights to dignity and protection with the practical need for decisive legal management.

The Legal Process of Appointing a Curator

Appointing either a Curator Bonis or Curator Ad Litem is a serious legal step that involves strict judicial oversight. This process exists to protect the rights of the incapacitated adult and to ensure that only a capable, trustworthy individual assumes such responsibility.

Step 1: Confirming Incapacity

The foundation of any curatorship application is clear medical evidence. The court requires:

• Two independent medical reports confirming the individual’s mental incapacity
• At least one report prepared by a psychiatrist
• A full assessment of the individual’s ability to understand financial and legal decisions

Step 2: Application to the High Court

A family member, close associate, or concerned party must lodge an application to the High Court, supported by a founding affidavit. This document explains:

• The individual’s condition and the nature of their incapacity
• Why curatorship is necessary to protect their interests
• The applicant’s proposed plan for the appointment of a Curator Bonis

Step 3: Appointment of a Curator Ad Litem

Before any transfer of authority takes place, the court first appoints a Curator Ad Litem. This ensures that an independent party investigates and reports on the case, confirming:

• That the individual is indeed incapacitated
• That curatorship is warranted
• That the proposed Curator Bonis is suitable and trustworthy

The Curator Ad Litem’s report is central to the court’s decision and serves as the incapacitated adult’s protective voice throughout the process.

Step 4: Court Order and Oversight

If satisfied, the High Court will issue an order appointing a Curator Bonis. From that moment:

• The Curator Bonis assumes responsibility for managing the individual’s financial affairs
• Major transactions and decisions are subject to oversight by the Master of the High Court
• Periodic reporting ensures that the estate is administered lawfully and in the best interests of the incapacitated adult

This formal, multi‑stage process prevents abuse, enforces accountability, and creates a secure legal framework for ongoing management.

VDM Attorneys – Legal Insights You Can Trust

Legal issues involving incapacitated adults are sensitive and complex, requiring careful consideration and accurate guidance. At VDM Attorneys, we are committed to providing clear, reliable information on the legal mechanisms available to protect vulnerable individuals and their estates.

Whether you are exploring curatorship, understanding the limitations of a power of attorney, or simply seeking to stay informed on matters affecting your family, our team shares knowledge designed to help you make informed, confident decisions.