Download Power of Attorney Forms
What is power of attorney?
Power of attorney is a letter of authority to act on behalf another person (the principal) in legal or financial matters. Power of attorney (PoA) can be given to an agent either over specific acts (special power of attorney) or in general.
Power of attorney is not a contract. It is an expression of will by the principal for the agent to act on his/her behalf. The signature of a power of attorney empowers the agent to act and notifies third parties of the principal’s will. The agent is protected from liability when conducting acts on behalf of the principal – provided the agent is properly authorised.
How and where to get power of attorney in South Africa?
You can download a general and a limited power of attorney template for South Africa below. Power of attorney is granted when the principal signs the document. In some cases, power of attorney must be notarized in South Africa by an attorney.
Requirements of power of attorney
In certain instances, the law on power of attorney in South Africa has additional requirements for power of attorney to be valid. These include who prepares the power of attorney and how many witnesses must sign the document.
In terms of the Deeds Registries Act, 1937, power of attorney resulting in the signing of transfer of property documents must be:
- Signed before two witnesses;
- Must have been prepared by a conveyancer, notary or attorney; and
- Must have been countersigned by a conveyancer if it was not prepared by the conveyancer.
Both specific and general powers of attorney must comply with the requirements of the law.
Termination of power of attorney
Power of attorney lapses when the principal either:
- Revokes the power of attorney;
- Becomes insolvent and his/her estate is sequestrated; or
- Becomes mentally incapacitated.
Enduring power of attorney in South Africa
The law on power of attorney in South Africa also requires that the principal must have contractual capacity in order for power of attorney to be valid. In other words, the person giving authority must be of sound mind in order to be able to give authority.
Thus, when a principal is no longer of sound mind, a power of attorney can cease to operate even if it was signed before the principal’s mental health deteriorated. This is problematic for elder people who wish to authorise someone to act on their behalf for when they are no longer capable of doing so themselves. The power of attorney terminates once the principal becomes mentally incapacitated.
Enduring power of attorney has not yet been introduced into South African law. Those who wish to grant authority to someone to handle their affairs when their mental ability has deteriorated must apply to the court for the appointment of an administrator or a curator. Alternatively, they could set up a family trust. However, these options are complex and take a long time.
A principal, who is still of sound mind, can grant an enduring power of attorney in hopes that the law would change and/or that a court would deem the enduring power of attorney valid. An enduring power of attorney includes a clause which states that it is an enduring power of attorney and that future incapacity will not render the power of attorney invalid.
When is power of attorney litigation required?
Some common issues that arise in power of attorney litigation include:
- Charges that the agent is using the power of attorney improperly – whether by dishonesty or lack of better knowledge.
- Conflicts about the validity of a power of attorney when another newer/older power of attorney exists.
- Legal counselling for the agent with regards to his duties and procedures relating to his authority.
- Requests to have an agent’s account audited.
- Disputes between multiple agents about the management of the power of attorney.
- Disputes over the validity of a power of attorney when a principal has become incapacitated.
How to write a power of attorney letter
A power of attorney letter is similar to a conventional business letter. The structure of the power of attorney letter comprises of a heading, body, signatures and a revocation statement (optional). The format of a power of attorney letter is:
- A heading with your name, address and contact information.
- The date (above or below the heading).
- An addressee line (i.e. “To whom it may concern”) before the body.
- The body:
- The name and address of your agent, along with words to the effect of granting that person authority to act on your behalf.
- The nature of the authority (general or special power of attorney)
- Dates and the duration of the power of attorney in the case of a special power of attorney letter.
- Circumstances by which the general power of attorney remains valid or invalid.
- Signatures (of the principal and two witnesses) to validate the power of attorney.
- Notary witness signature and date stamp (in certain cases).
- An optional revocation statement at the end with signature-, date- and witness lines. A power of attorney can be revoked at any time.