Overriding a Power of Attorney in South Africa 

A power of attorney (POA) is a legal document that grants one person (the agent or attorney-in-fact) the authority to act on behalf of another person (the principal) in legal or financial matters. In South Africa, several parties can override a power of attorney:

  • The Principal: The most effective way to override a power of attorney is by the principals themselves. If the principal is mentally competent, they can revoke the POA anytime, providing a strong sense of control and reassurance.
  • A Court: If there is a dispute or evidence of misuse or abuse of the power of attorney, a court can intervene. Family members or other interested parties can petition the court to revoke a power of attorney, ensuring the principal’s interests are robustly protected and fostering a deep sense of security.
  • A New Power of Attorney: The principal can exercise their right to create a new power of attorney, which can override the existing one if it is specified in the new document. This process involves drafting a new power of attorney document, signing it in the presence of a witness, and registering it with the relevant authorities. This flexibility empowers the principal and keeps them informed about their legal options.

How Long is a Power of Attorney Valid in South Africa?

In South Africa, a power of attorney remains valid as long as the principal is alive and mentally competent. The document becomes invalid if the principal passes away, becomes insolvent, and their estate is sequestrated or becomes mentally incapacitated, rendering them unable to make decisions due to conditions such as Alzheimer’s, stroke, mental illness, dementia, coma following an accident, age-related cognitive decline, and more. 

South African Law does not have a provision for a durable power of attorney that remains effective after the principal becomes incapacitated. ‘Legal capacity’ refers to the ability to understand and make decisions about one’s own legal affairs. An agent’s authority is limited to what the principal can legally do. If the principal loses legal capacity, for example, due to a mental illness, the power of attorney immediately becomes void, and the agent can no longer act on the principal’s behalf.

It is of utmost legal importance to understand that a person suffering from a mental impairment, such as dementia, cannot grant a power of attorney since they lack the legal capacity to do so. Family members acting under an invalid power of attorney, despite their good intentions, are acting unlawfully and may be held personally liable for any damages incurred because they lack the legal authority to act. This understanding ensures that you are fully informed and aware of the legal implications.

How do you give power of attorney to a family member in South Africa?

Granting power of attorney to a family member in South Africa involves several steps:

  1. Drafting the Document: The principal must draft a power of attorney document. This can be done with the help of a lawyer to ensure it meets all legal requirements. The document should clearly state the powers being granted and any limitations.
  2. Signing the Document: The principal must sign the document in the presence of a witness. While not mandatory, it is advisable to have the document notarized to add an extra layer of authenticity.
  3. Acceptance by the Agent: The family member being granted power of attorney should formally accept the responsibility. This acceptance can be included in the document or provided separately.
  4. Registration: Registering a power of attorney with relevant authorities such as the Deeds Office is crucial, especially for property matters under the Deeds Registries Act 47 of 1937. The Deeds Office is responsible for the registration, management, and maintenance of the property registry system in South Africa. Registering a power of attorney with them ensures that the document is legally recognized and can be enforced.

How to Revoke a Power of Attorney in South Africa? 

Circumstances may arise where the principal wishes to revoke or terminate the power of attorney (POA). In South Africa, revoking a POA requires specific legal procedures to ensure compliance with the law and protect all parties’ interests. Due to the legal complexities involved in revoking a power of attorney, the principal should seek guidance from a qualified attorney specializing in estate planning and property law. 

Revoking a power of attorney in South Africa is a relatively straightforward process: 

An attorney can assist with revocation , ensuring all legal requirements are met and protecting the principal’s rights and interests. The process involves:

Reviewing the POA 

Carefully review the existing document to understand its terms, conditions, and termination provisions. This will help determine the appropriate course of action and ensure compliance with any contractual obligations.

Drafting and Executing a Revocation Document 

The principal must draft a document stating the revocation of the previously granted power of attorney. This formal document should include the date of the original POA, the agent’s name, and a clear statement of revocation.

Informing the Agent and Appointed Attorney 

The principal should inform the agent and or appointed attorney in writing that their authority has been revoked. This notification should be done formally to avoid any confusion either via registered mail or another reliable form of communication to ensure that the agent and or appointed attorney receives the notification promptly.

Notifying and Filing with Relevant Third Parties or Authorities 

Any third parties who have been dealing with the agent under the power of attorney should be informed of the revocation. This includes the Deeds Office, banks, financial institutions, and other relevant entities. 

Legally Confirming

Although not always required, it is advisable to have the revocation document notarized and possibly registered, depending on the type of power of attorney and the matters it covers.

While a Power of Attorney in South Africa is a powerful legal tool, it comes with specific responsibilities and procedures for granting and revoking it in South Africa. Understanding who can override it and the steps involved in its creation and revocation ensures that it serves its intended purpose effectively. Principals are urged to consult with our knowledgeable team of attorneys at Burger Huyser Attorneys to ensure you can effectively revoke a POA and safeguard your rights and interests by South African law. 

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE