Power of Attorney Explained

There are times when you need someone else to sign or act for you: you are working overseas, you are in hospital, or a parent is getting frail. A power of attorney can help, but many families only discover its limits when it is too late.

What is happening

A power of attorney is a written document in which you (the principal) give another person (the agent) authority to act on your behalf. It can be:

• General, covering most of your financial and legal affairs, such as banking and paying accounts.
• Special, limited to one task, such as signing documents to sell a specific car or house.

The most important thing to know is this: in South Africa, a power of attorney usually ends when the person who gave it loses mental capacity. That means if a parent develops advanced dementia or has a serious stroke, the power of attorney they signed earlier generally stops working, just when the family needs it most. South Africa does not currently recognise an "enduring" power of attorney that survives loss of capacity.

When a person can no longer manage their own affairs, other routes exist:

• A curator, appointed by the High Court to manage property (curator bonis) or personal welfare (curator personae). This is thorough but can be costly and slow.
• An administrator under the Mental Health Care Act, applied for through the Master of the High Court, for a person with a mental illness or severe intellectual disability. This is often simpler and cheaper for smaller estates.

A power of attorney also ends when the principal dies. After death, only the executor can deal with the estate.

Signs to notice

• You are caring for a parent or relative whose memory or judgement is getting worse.
• The bank will not let you help a family member with their account.
• You will be away or in hospital for some time and bills still need paying.
• Someone is using a power of attorney and you worry they are misusing it.
• You were asked to sign a power of attorney and do not fully understand what it allows.
• A relative has already lost capacity and nobody has legal authority to act.

30-second self-check

Answer yes or no to each question.

• Is someone you care for showing signs of memory loss or confusion?
• Do they still have property, accounts or a pension that need managing?
• Is there no power of attorney or other legal arrangement in place?
• Has a bank or institution refused to deal with you on their behalf?
• Are you worried someone may be taking advantage of them financially?
• Are you unsure whether they still have capacity to sign documents?

0-1 yes: You may simply need a clear, limited power of attorney for a specific task.
2-3 yes: Plan ahead now, while the person can still make their own decisions.
4 or more yes: Get legal and medical guidance soon about a curator or administrator.

What you can do next

• Today: Write down what needs managing: accounts, debit orders, property, grants, pensions and medical aid.
• This week: If the person still has capacity, talk openly about their wishes. Consider a power of attorney, and also a will, while they can sign.
• This month: If capacity is already in doubt, ask their doctor for an assessment and get legal advice about an administrator or curator.
• Only give a power of attorney to someone you trust completely. Keep it as narrow as possible and keep a copy.
• You can cancel a power of attorney you gave at any time while you still have capacity. Tell the agent and any bank in writing.
• If you suspect financial abuse of an older person, report it. Abuse of older persons is taken seriously under the Older Persons Act.

Your tool

Legal Needs Triage - a quick check that helps you name the kind of legal problem you are facing, how urgent it is, and which professional to speak to.

When to get professional help

Get help before someone loses capacity if you can, because that keeps more options open. Get help straight away if a person has already lost capacity and bills, grants or medical decisions are piling up, or if you suspect someone is misusing their authority.
Who can help: attorney_general, attorney_estates, social_worker, legal_aid_sa, doctor

Getting help in South Africa

An attorney can draft a power of attorney or bring a curatorship application; check registration at lpc.org.za. The Master of the High Court (justice.gov.za) handles administrator applications under the Mental Health Care Act. Legal Aid South Africa (legal-aid.co.za) may help people who qualify. Social workers and organisations working with older persons can support families caring for someone with dementia.