By Sisteen Geyser – Director, Estates and Trust Department
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.
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)