When does a General Power of Attorney lapse?

By Sisteen Geyser – Director, Estates and Trust Department

If a person who needs to have a legal act done while being unable to attend to it personally, because of illness or being outside the country, for example, such a person (“the principal”) could execute a power of attorney in favour of a third party (“the agent”).  The law on agency applies to this relationship.

The principal must have the necessary contractual capacity for the power of attorney to be valid, and must understand the nature and consequences of granting a power of attorney.  A validly executed power of attorney automatically lapses as soon as the principal is no longer able to perform the acts in question personally.

An adult who does not have full contractual capacity (for example, because of a stroke or extreme old age) requires assistance to make decisions.  Depending on the person’s circumstances, an application should be made to the Master of the High Court for the appointment of an Administrator, or to the Court for the appointment of a Curator Bonis.

Should the principal’s health deteriorate to the point of not being able to comprehend any acts done on their behalf in terms of the Power of Attorney, the family should consider appointing an Administrator or Curator to manage their affairs.

Should you have queries about the validity of a Power of Attorney or need guidance on whether a person needs assistance to manage their affairs, please contact our Estate and Trust Department.

Should you have queries about the validity of a Power of Attorney or need guidance on whether a person needs assistance to manage their affairs, please contact our Estate and Trust Department.

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)

Dying without a Will, especially whilst owning Immovable Property, is a Recipe for a Family Feud:

By Sisteen Geyser – Director, Estates and Trust Department

It is a common but unfounded belief that the State will take over your assets if you die without a Will.

The Intestate Succession Act, no. 81 of 1987, sets out the rules of how the estate of a person who died without a Will should be divided between his/her family members.  It specifically makes provision for a surviving spouse, by ensuring that the spouse will inherit the first
R250 000 or a child’s share of the Estate, whichever is more.  A child’s share is calculated by dividing the value of the intestate estate by the number of children of the deceased (both surviving the deceased and deceased children who passed away leaving descendants), plus the number of spouses who have survived the deceased.

Problems arise where the deceased held immovable property, as the above rules would have the effect of the surviving spouse and all the children (or grandchildren representing a predeceased child) inheriting immovable property jointly.

Where the deceased is survived by children only, and they in turn have minor children, matters become even more complicated.  There may be problems about who will pay the costs of the administration of the estate and the costs of transferring the immovable property to the heirs, and co-ownership of the property by a number of family members may be impractical and give rise to disputes.

Prevention is better than cure in these circumstances.  To ensure that a surviving spouse or one child inherit the immovable property as sole owner, to avoid complicated and possibly contentious sharing, you should draw up your Will accordingly.

Should you wish to draw up a Will or simply revise your existing Will, please contact our Estate and Trust Department.

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)