At CA Trust Company, we often receive inquiries about the complexities of power of attorney in South Africa. This legal concept is essential for managing affairs when one is unable to do so personally.

Power of attorney allows an individual (the principal) to appoint another person (the agent) to act on their behalf. It can be either general, granting broad authority or specific, limiting the agent’s actions to particular tasks. For instance, a general power of attorney permits the agent to handle a wide range of matters, while a specific power of attorney restricts the agent to certain activities, such as attending an auction or managing a particular transaction.

A significant challenge arises when the principal loses mental capacity, as South African law does not recognise enduring power of attorney. This limitation means that if the principal is no longer able to withdraw the power of attorney due to mental incapacity, the power of attorney lapses. This poses difficulties, particularly for those dealing with conditions like dementia or Alzheimer’s disease.

Given this limitation, there are two primary alternatives in South Africa. One option is to apply to the High Court for the appointment of a curator bonis, a process that involves preparing and filing court documents and can be quite costly. Another route is to appoint an administrator under the Mental Health Care Act of 2002. However, this too has its drawbacks, such as requiring the Master’s permission to sell fixed property, which can be delayed due to administrative backlogs.

For an in-depth exploration of power of attorney in South Africa, including these legal alternatives and proactive measures you can take, we recommend reading the article by Louis van Vuren, CEO of the Fiduciary Institute of South Africa (FISA), in the June 2024 edition of COVER Web Magazine.

Read more here: The Intricacies of Power of Attorney in South Africa

If you need more information or assistance with power of attorney matters, please do not hesitate to contact us. Our team of experts is here to help you understand your options and find the best solution for your unique situation.