Introduction

As a firm of attorneys we receive many enquiries regarding the scope and application of powers of attorney. This article will address the following questions:

  1. When should a power of attorney be used?
  2. Can I delegate power now, in case I can no longer manage my own affairs?

The problem is that where a power of attorney is wrongfully applied, it may be or become legally unenforceable and the resultant transactions all overturned. Not to mention the potential for personal liability being incurred.

Powers of attorney

The matter of giving a power of attorney (for a person to act on your behalf) given specifically in anticipation of incapacity (e.g lack of consciousness, ill health affecting mental capacity and faculties) is not a simple matter.

According to the common law, a power of attorney may generally be executed by any person having legal capacity to do so in order for another to sign any document on their behalf.[1]

This principle was confirmed in the case of Pheasant v Warne 1922 AD 481, with reference to Molyneux v Natal Land Company 1905 AC 555, where it was held that a power of attorney cannot be granted by someone who, because her mental faculties have been impaired by old age, had not been in a position to understand what the particular legal proceedings instituted against her were about. Thus, having executed a conditional or enduring power of attorney prior to becoming incapacitated may be a practical way in which to deal with your affairs promptly and effectively.

However, the most obvious challenge with the approach of the enduring power of attorney, is that legal decision-making is an ongoing and dynamic process, which requires competence and capacity at the time of making a decision. Therefore the very idea of an enduring power is thus, in the view of many authors, misconceived.[2] This school of thought supports the approach of a competent court for the application for appointment as curator bonis. The said application is time consuming and expensive and thus cumbersome.

On the other hand, the concept of the Enduring Power of Attorney (EPA) and a Lasting Power of Attorney (LPA) in countries like the United Kingdom (UK), is still acceptable.

Further, under common law, a power of attorney could also be granted subject to a suspensive condition (that it will be effective only on the occurrence of an uncertain future event), most powers of attorney that are given are effective immediately upon execution thereof by the principal.[3] The problem with this approach is that the exact time upon which the power of attorney becomes effective may not be certain or may even be challenged in court. Naturally, the latter in addition to the appointment of a curator bonis.

Writers have long since commented upon these issues and several have suggested that these foreign models where legislation regulates the parameters be replicated locally, to overcome these common law problems.[4] To date however, this has not materialised.

In the meantime, in terms of section 39(1)(c) of our Constitution, South African courts may consider foreign law when interpreting the Bill of Rights. It cannot be overemphasised though that these practices have not been tested in our courts as yet and we have no indication of how our courts will view them. As such, they represent a certain risk which needs to be recognised.

Conclusion

The power of attorney either given conditionally or as an enduring power of attorney is possible, but risks still exist. Accordingly, having same professionally drafted may limit this risk but not extinguish it as approaching the relevant court, notwithstanding the power of attorney, may be necessary and the appointment of a curator to handle the affairs of the person who is unable to do so himself may be the only remedy in such a situation. This until the law has evolved as it has abroad.

[1]     Pienaar v Pienaar’s Curator 1930 OPD 171 at 174-175.

[2]     Van Dokkum 1997 Southern African Journal of Gerontology 19.

[3]     Cf Joubert 93-94, 102; Schlesinger and Scheiner 1992 Trusts and Estates 40.

[4]     C Neumann “Curatorship – a Test of Endurance” in De Rebus June 1998 61-64 and the SA Law Commission Discussion

Paper 105 Project 122 on Assisted Decision-making: adults with impaired decision making capacity January 2004

http://salawreform.justice.gov.za/dpapers/dp105.pdf: accessed 5 June 2013.

About The Author

Nicolene Schoeman-Louw

I founded the firm Schoemanlaw Inc in 2007 aged 24 and am the Managing Director of the firm. I am an admitted attorney of the High Court of South Africa, as well as a Conveyancer , Notary Public and Mediator. I obtained my LLB degree cum laude and successfully completed my LLM degree (dissertation) in commercial law and B-BBEE at the University of the Free State. In addition I obtained my postgraduate diploma in financial planning (CFP) at the University of Stellenbosch. An abstract of my LLM dissertation was published in the Journal for Estate Planning in 2006 and is regularly published in De Rebus (the SA attorneys’ journal) as well as Without Prejudice and Polity.org (legalbriefs). I also write regularly for various online publications such as Spice for Life and other mainstream publications such as The Entrepreneur Magazine, Personal Finance Magazine and have a regular slot on SAfm’s The Law Report with Karen Key. For more information visit http://www.schoemanlaw.co.za/about-us/

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