Having recently observed Older Persons Week (26 September – 2 October) and International Day of Older Persons (1 October), it is an important time to reflect on the legal and practical realities that arise when elderly parents or relatives are no longer able to manage their own affairs.
When an ageing parent begins to show signs of cognitive decline or struggles to keep up with everyday responsibilities, families are often faced with difficult decisions. Questions about who should manage finances, healthcare and personal welfare can be emotionally charged, and understanding the available legal options is critical.
According to Susan Abro, Family Law Attorney, these situations are not uncommon. “It can be distressing for families to see their loved ones become vulnerable. But it’s even more stressful if there are no legal mechanisms in place to protect their wellbeing and their assets. That’s why it’s so important to understand the difference between options such as a power of attorney and curatorship, and when each applies,” she explains.
A power of attorney (POA) is often the first step when an elderly person still has mental capacity but requires practical assistance. It allows a trusted person to manage matters such as paying bills, handling property transactions or accessing bank accounts. However, South African law does not recognise an enduring power of attorney, meaning it becomes invalid if the person loses mental capacity. At that point, the only viable legal option is curatorship.
Curatorship is a more complex and formal process, usually reserved for cases where a person is no longer able to act in their own best interests. “A curatorship application involves the high court and requires medical evidence of incapacity,” says Abro. “It can be lengthy and costly, but it is designed to safeguard the individual’s welfare and finances. Depending on the circumstances, the court may appoint one curator to oversee financial affairs, another to handle personal welfare, or both.”
For families, the transition can be overwhelming. Many are unaware that a general power of attorney lapses once a person loses mental capacity. This can leave loved ones vulnerable to exploitation, financial loss, or disputes among relatives. “The earlier you have these conversations as a family, the better,” advises Abro. “It’s not only about finances. It’s about protecting dignity, ensuring proper care and reducing conflict.”
While each case is unique, the principle remains the same; preparation is essential. Families are encouraged to seek legal advice early on, before challenges escalate. “Planning ahead spares everyone unnecessary emotional strain and financial difficulty,” Abro concludes.
