What is a power of attorney?

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A Power of Attorney is a notice that gives a third party the permission to act on your behalf and/or make decisions for you. It can be restricted to specific matters (“special power of attorney”) or without restrictions for all matters (“general power of attorney”), and is considered a valuable tool when the decisions are made eg: when overseas or when a person becomes too frail to physically sign documents.

The most common instance where is power of attorney is used is with the elderly, especially when someone becomes too frail to physically sign documents. In a situation like this, a power of attorney can be considered a practical solution for convenience.

For how long does a power of attorney stay valid?

It may come as a surprise that it is not possible under South African law to sign over a power of attorney when becoming mentally incapacitated. When a person becomes mentally incapacitated and is no longer able to conduct their own affairs, the power of attorney ceases and professional assistance needs to be brought in. The reasoning behind this is that since the person signing over the power of attorney can no longer act personally, the agent can’t act on his or her behalf. If a person becomes mentally incapacitated after executing the power of attorney, the power of attorney is invalid and terminates. It becomes irrelevant that the person had full mental capacity at the time of signing the power of attorney. If someone acts on an invalid power of attorney, it can be considered fraud and they can expose themselves to personal liability for personal losses by a third party.

If someone becomes incapacitated their family can apply to the High Court to place such person under Curatorship and all authority in terms of the incapacitated person is transferred to the curator.

In addition to the above, a power of attorney will also terminate on death of the person signing over the power of attorney if the person becomes insolvent or on completion of the period for which the power of attorney was originally granted. In the case of a special power of attorney, the power granted will terminate on execution of the mandate.

For advice on this topic or assistance in any matters relating to legal matters, please contact our law specialist Elke Herbst at e.herbst@bissets.comm.

 

Elke Herbst | Associate

E: e.herbst@bissets.comm

Areas of Expertise: Wills | Deceased Estates | Curatorships

 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)