South Africa has a fundamental gap in its incapacity planning legislation that many people are unaware of — one that can have devastating consequences for families. Unlike the UK (Lasting Power of Attorney), Canada (Enduring/Continuing POA), Australia (Enduring POA), and many other jurisdictions, South Africa does not have a statutory "enduring" power of attorney that survives mental incapacity.
This means that the moment you lose mental capacity — due to dementia, a stroke, or any other cause — any Power of Attorney you have signed automatically lapses. Your family then has no legal authority to manage your financial or personal affairs without applying to the High Court for a costly and time-consuming curatorship.
Understanding this critical limitation, and the planning strategies available to work around it, is essential for South Africans planning their estates in 2026.
A broad POA granting authority over all financial and property matters. Used when you are temporarily unable to manage your own affairs (travelling, illness, practical inconvenience). Lapses immediately if you lose mental capacity or die.
Limited to a specific transaction or matter — for example, authorising an attorney to sign documents relating to the sale of a specific property. Commonly used in conveyancing.
Used in commercial contexts where the authority given to the agent is coupled with an interest — for example, where a creditor is given authority to sell an asset as security. These cannot be revoked by the principal but are rare in personal estate planning.
When a person loses mental capacity in South Africa without having structured their affairs to avoid it, the only formal mechanism for someone else to manage their financial affairs is the appointment of a curator bonis by the High Court.
A curator bonis is appointed under the common law and the Mental Health Care Act 17 of 2002 to administer the financial affairs of a person who has been declared incapable of managing their own affairs. The appointment process involves:
Compare this to the cost of proper upfront planning — which is a fraction of the above.
A comprehensive SA estate plan includes a valid will, life insurance strategy, and trust structure. Start with your will today.
Create My SA Will →Despite the absence of an enduring POA in South Africa, several practical planning strategies can reduce or eliminate the need for a curatorship:
A living trust (inter vivos trust) established while you have capacity holds your assets on behalf of beneficiaries. The trustees — who you appoint — continue to manage the assets even if you become incapacitated. The trustees do not require any court order to continue acting. This is the most comprehensive solution for incapacity planning in South Africa.
A properly structured trust with a co-trustee (such as a trust company) provides continuity of management regardless of the founder's health. The founder can also be a beneficiary of the trust during their lifetime.
Assets held jointly with a trusted person (typically a spouse or adult child) allow the joint owner to continue managing those assets without any court process, even if one party becomes incapacitated. Bank accounts, investments, and properties can all be jointly held.
Most South African banks allow account holders to sign a mandate authorising another person to operate their accounts. While this technically lapses on incapacity (common law), many banks continue to honour existing mandates unless formally notified of incapacity. This is an imperfect solution but can provide practical continuity in many situations.
For married couples, the accrual system and marital property regime can provide some asset management continuity, though this is not designed as an incapacity planning mechanism.
South African law reform bodies have recognised the gap in incapacity planning legislation for many years. The South African Law Reform Commission has proposed comprehensive reform, and draft legislation addressing enduring powers of attorney has been discussed — but as of 2026, no such legislation has been enacted.
Until comprehensive enduring POA legislation is enacted, the strategies outlined above (particularly the inter vivos trust) remain the most effective planning tools available to South Africans concerned about mental incapacity.
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