Power of Attorney in South Africa

What is meant with a Power of Attorney and what does it entail?

A Power of Attorney is a legal document, whereby a principal (person giving the authority to act on his/her behalf) gives authority to an agent (person acting on behalf of the principal) to act on his/her behalf. The Power of Attorney will set out the nature and scope of the agent’s powers to act on behalf of the principal, including but not limited to signing of legal documents, entering into contracts, opening and closing bank accounts, selling or purchasing property and instituting legal action.

When will I need a Power of Attorney?

Circumstances may arise where a person is unable to sign or conclude an agreement him-/herself, such as when a person will be out of town for a long period, but in that period, that person needs to conclude a sale agreement which needs to be signed by him/her.

What can this person do to make sure that the necessary documents, especially the sale agreement are signed on time while he/she is occupied or unavailable

Our law makes provision for the occupied person to have an agent acting on his/her behalf. This can be done in the form of a Power of Attorney; a written document specifying the nature and scope of the agent’s powers to act on behalf of the principal (the occupied person who is the person wanting to sign the sale agreement).

What are the legal requirements for a Power of Attorney?

The Power of Attorney needs to be signed by the principal, giving the agent authority to act on his/her behalf. The principal’s signature has to be co-signed by at least one witness to confirm that it was indeed the principal signing the document. As with any other contract made, the principle should have full contractual capacity to grant the agent authority to act on his/her behalf.

As there are no prescribed forms that exist in our law when drafting a Power of Attorney, this document should be drawn up with the utmost care and diligence to protect both principal and agent. The intention of the principle is tantamount to the core of the document. To ensure the wanted intention is envisioned in the document and that the document meets all the correct requirements, make sure that a person with the necessary skill and knowledge assist with the drafting and conclusion hereof.

Can I get a Power of Attorney if a person is mentally incapable and cannot manage their own affairs?

A person declared mentally incapable, will not be able to sign a power of attorney as they will not have full contractual capacity to grant the agent authority to act on his/her behalf. In this case, an application will have to be made to appoint a curator to manage the person’s affairs.

Can I get a Power of Attorney if a person is diagnosed with early-onset Alzheimer’s or dementia?

If the principal is still within sound mind and knows exactly what he/she is doing, the Power of Attorney will be binding and valid. The principle should have full contractual capacity to grant the agent authority to act on his/her behalf when signing the power of attorney.

What powers are not allowed under a Power of Attorney?

The authority given to the agent must be legal. Should the principle give the agent authority to commit a crime in the Power of Attorney, this authority given will be invalid and against the public interest. The actions and powers which have been given to the agent must also be possible to execute. If the action which the agent is to execute is physically impossible, such as going to the planet Jupiter, the authority will be invalid and not binding.

What is the difference between a Special Power of Attorney and a General Power of Attorney?

Categorically, a Power of Attorney can either be a general document or a Special Power of Attorney. Should the principle require the agent to only conclude one specified act and the scope of the agent’s authority only entails that action, such provision can be included in the Special Power of Attorney. This will be applicable where the principle only requires the agent to sign the sale agreement on his behalf and nothing more.

In contrast hereto, a general Power of Attorney provides the agent with more extensive powers, such as the ability and power to bring amendments to the sale agreement, signing the sale agreement and taking possession of the property on behalf of the principal together with all other actions to enable the sale agreement to proceed without any complications and be completed.

When does a Power of Attorney come to an end?

The agent’s powers under the Power of Attorney will be terminated automatically should the principal or the agent pass on, when either of them are sequestrated or declared mentally incapacitated. This is not the only incidents whereby the agent’s powers are terminated; it is self-explanatory that should the principle provide the agent with the power to conduct a specific action and such action has been completed, the mandate of the agent will automatically terminate.

The principal also has the right to revoke the agent’s Power of Attorney by signing a document setting out the details and the effective date of the revocation of same.

Written by Anna-Mi Moorcroft

14 May 2021