In Power of attorney- Key concepts we explained what a power of attorney is and some of the different types of powers of attorney that can be drafted and adopted.
There is a common misconception in this country that a power of attorney remains valid when the person granting the power of attorney becomes mentally unfit. It is important to note that this is not the case. A power of attorney only remains valid for as long as the person granting the power of attorney is still capable of appreciating the concept and consequences of granting power of attorney to another person. Therefore, when the person granting the power of attorney is no longer mentally capable then the power of attorney does come to an end and other measures then need to be taken.
Some countries around the world have something that is called an “enduring” power of attorney. Under this authorisation, when the person granting the power of attorney becomes mentally unfit the power of attorney does not lapse, but in fact remains in force. The reason being that they feel that now that the person granting the power of attorney is mentally unfit, the need for a power of attorney is even more important. So allowing it to fall away should not be an option.
However, South African legislation currently does not allow for enduring power of attorney and as such those principles are not applied by our courts when faced with such a case. There have been many suggestions by experts that an amendment to our legislation be made to allow for such a power of attorney. However, there has not been anything concrete to date to suggest that such a change may be coming.
Always remember to get expert legal advice to ensure the power of attorney that you put in place is legally valid in terms of South African law.
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