Understanding Power of Attorney in South Africa

That’s why it’s important to understand how Power of Attorney (POA) works in South Africa.

What is Power of Attorney?

A Power of Attorney allows someone (called the principal) to give another person (the agent) permission to act on their behalf. This might be to help with financial matters, signing documents, or managing property.

However, South African law does not recognise an enduring Power of Attorney. This means that the moment a person is no longer of sound mind (due to dementia, Alzheimer’s, or any mental incapacity), the Power of Attorney automatically ends – even if it was signed before.

What happens when someone loses mental capacity?

Once a medical professional confirms mental incapacity, the person who was appointed as agent under the POA no longer has legal authority to act on their behalf. This can make it difficult to manage important matters like banking, medical paperwork, or business and property decisions.

What can you do instead?
There are a few legal options available, depending on your family’s situation:

1. Apply for Administration
   Under the Mental Health Care Act, a family member can apply to the Master of the High Court to be appointed as an administrator. This is typically the simplest and most cost-effective option.
2. Apply for Curatorship
   If there are no suitable family members, the High Court may appoint a curator bonis, usually a legal or financial professional. This is a longer and more expensive process, as it requires a formal court application.
3. Understanding that the POA will end
   A general Power of Attorney ends as soon as a person loses mental capacity. It cannot be used after that point, even if both parties previously agreed.

Practical steps you can take now

Even if you can’t prevent the legal complexities, there are simple things you can do now to help make things easier down the line:

• Keep passwords and logins secure and accessible
  Most services today require one-time pins or mobile authorisations. Make sure someone knows how to access the necessary apps and emails.
• Keep the phone active
  The phone linked to banking apps and alerts should always be able to receive SMS or email notifications.
• Organise important documents
  Keep all financial records, policy documents, banking info and key contacts in one place. A simple file or digital folder can make all the difference.

Start the conversation early

The earlier you start the conversation with your parents or loved ones, the better. Knowing where things are, who to contact, and what they would want if something happened takes a huge burden off everyone later on.