By Hannah Mower
A power of attorney is a legal document that allows power of influence or command to give orders and make decisions on behalf of another person, known as an Agent or Attorney, and to act on behalf of another person’s specific needs or matters.
In South Africa, the power of Attorney plays an important role in making it possible for individuals to entrust decision making.
There are different types of power of attorneys:
General power of Attorney is a legal document that grant a broad authority to the nominated agent to act on various matters on behalf of a principal.
Special Power of Attorney provides the agent permission to act in limited, or specific areas as written in the recorded document.
If the principal becomes mentally incapacitated or can no longer make decisions for themselves the power of attorney can fall away, and the person will have to be placed under administration or curatorship.
When drafting a power of Attorney some requirements must be met.
Legal Capacity:
The principal must have the legitimate capacity to understand the importance and weight of giving control of power to another individual.
Informed and Voluntary Consent:
The principal must voluntarily and knowingly provide Permission to the agent, understanding the scope of the powers being granted.
Formalities:
The power of attorney is signed by the principal together with two witnesses.
Responsibilities and Duties:
Appointed Agents under a power of attorney have the duty to act in the best interest of the principal, to exercise their powers in such a manner to avoid conflicts of interest. Accurate record keeping and provide regular updates to the principal.
In South African law an agent may not have more powers than the principal.
Termination and Revocation:
A Power of Attorney can be revoked or terminated by the principal at any given time, as long as they have the legal capacity to do so.
This should be communicated fully and clearly in writing to the agent.
Power of Attorney may also be terminated by passing on or incapacity of the principal.
Conclusion:
Seeking professional assistance, individuals can effectively delegate authority while protecting their best interests.
Understanding and complying of the relevant laws is of great importance and is crucial when creating and managing a power of attorney.
