A Power of Attorney is a written authorization to represent or act on another’s behalf to conclude juristic acts. The ‘”Principal” therefore authorises or empowers the “agent” to act on the former’s behalf in the extent to the authority given in terms of the Power of Attorney.
No one has the right to act in a legal sense on behalf of another unless one has been given authority to do so. Authority may be obtained in terms of a Power of Attorney, or in more serious cases, curatorship or administration. The person acting in the capacity of an agent on behalf of the principal, are protected against third parties and will not be held liable for any of the principals actions. The most essential element of a Power of Attorney is that the principal must be mentally competent.
Firstly, a Power of Attorney can be specific. This is the most common form of a Power of Attorney used in practice. A Special Power of Attorney granted by the principal gives limited powers to the agent. The agent is then authorized to perform a certain task on behalf of the principal in terms of the provisions of the Special Power of Attorney. An example herein would be where a principal authorizes a sibling or friend (the agent) to sell a property on behalf of the former. Another reason may be that the principal will be leaving for overseas soon and therefore authorising the agent to sign the transfer documents on behalf of the principal with the Conveyancer. The Power of Attorney which a seller signs during the consultation with the Conveyancer, whereby authorisation is given to the latter to act on the former’s behalf at the deeds office, is also a Special Power of Attorney as same is only valid and applicable to that specific transaction. In the aforesaid, the seller will be the principal and the attorney(s) the agent(s).
Secondly, a Power of Attorney can be general. A General Power of Attorney authorizes the agent to conduct or manage any type of business on behalf of the principal. This type of Power of Attorney is often used in cases where a person is assisting his/her elderly parents in matters relating to legal choices, medical decisions, financial or business decisions. This form is also limited in a way as the agent is not allowed to make a will or initiate divorce proceedings on behalf of the principal. The General Power of Attorney does not have to be registered in the Deeds Registry when used for general purposes. However, when the General Power of Attorney is used for the transfer of immovable property, the original document must be registered prior or simultaneously with the transfer of the property. Once registered, a GPA number will be endorsed on the said document and a copy scanned in at the deeds office for future references.
A Power of Attorney is merely expressing the will of the principal and is only valid for as long as the principal are able to revoke same. It should be noted that a Power of Attorney terminates on incapacity of a person. Therefore, when a person is incapable of managing his/her own affairs, the Power of Attorney lapses. That means that the agent no longer has the powers to act on behalf of the principal. Should the agent proceed to act on behalf of the incapable principal, knowing that said principal is incompetent (not in a contractual capacity), the agent will not be protected against third parties and his/her actions will be fraudulent. It is advisable to apply for curatorship at the High Court in order for a curator bonis / curator personam to be appointed, the moment it comes to light that the principal is no longer in a contractual capacity, in terms of Rule 57 of the Uniform Rules of Court. This however is a costly and lengthy process.
In conclusion, make an appointment with your attorney before drafting a Power of Attorney, especially with General Power of Attorneys where a wide range of powers, if not all, are awarded to an agent. As mentioned above, as the Power of Attorney must be lodged at the Deeds Registry in certain cases it is important to make sure the Power of Attorney consist of all relevant legal requirements.
Johan Van Schalkwyk