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.

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 principle (the occupied person who is in fact the person wanting to sign the sale agreement). This document should be drawn up by considering certain requirements and formalities to be valid under South African law.

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Firstly, the Power of Attorney needs to be signed by the principle, giving the agent authority to act on his/her behalf. The principle’s signature has to be co-signed by at least one witness to confirm that it was indeed the principle signing the document. As any other contract made, the principle should have full contractual capacity to grant the agent authority to act on his/her behalf. A person declared mentally incapable, will therefore not be able to satisfy this requirement. The authority given to the agent must furthermore 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.

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 into a 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 principle together with all other actions to enable the sale agreement to proceed without any complications and be completed.

The agent’s powers under the Power of Attorney will be terminated automatically should the principle 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.

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 principle 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 meet all the correct requirements, make sure that a person with the necessary skill and knowledge assist with the drafting and conclusion hereof.


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