The law in South Africa requires a Power of Attorney for you to act legally on behalf of another person, even if they are your parent, sibling or child.
Why do you need a Power of Attorney?
Under South African law, a legal transaction is only valid if the parties transacting are able to understand the nature, purpose and consequences of their actions and have the legal capacity to act.
The Power of Attorney is the paperwork that gives you the legal capacity to act on behalf of another person.
By definition a Power of Attorney is:
- A legal document
- used by an individual who still has full contractual capacity to manage their affairs (referred to as “the Principal”)
- to appoint someone else as an agent to act on the Principal’s behalf.
When would a Power of Attorney be useful?
Situations that make it valuable to have a Power of Attorney from someone include when your spouse or child is out of the country for a critical or extended time period, or in the case of an older person, when they find it difficult to attend to their own affairs and choose to appoint an adult child to act for them.
Power of Attorney validity in South Africa
A power of attorney is valid until:
- The death of the Principal,
- cancellation of the Power of Attorney by the Principal, or
- such time as the Principal no longer has the mental capacity to conduct their affairs.
A person is considered mentally incapacitated when they cannot understand and appreciate the nature, purpose and consequences of their decisions or actions. This can also mean they are unable to manage their own affairs, which includes making decisions about finances, healthcare, property or legal matters.
Enduring Power of Attorney? Not in SA.
As you can see from the paragraph above, unlike jurisdictions such as the UK, South African law does not recognise an “enduring” Power of Attorney, i.e., one that remains effective after the Principal has become incapacitated.
To put in plain language, once the Principal no longer has mental capacity, the Power of Attorney falls away. In such an instance, no one is authorised to act on the Principal’s behalf, unless a curator or administrator is appointed for such purposes.
Given that a Power of Attorney does not endure beyond an individual’s mental competence and capacity to act on their own behalf, what’s involved in getting a curator or administrator appointed?
Appointment of a Curator in South Africa.
Any interested party can approach the High Court to request that a curator be appointed for an individual. Such an application requires an affidavit from the applicant as well as affidavits from two medical practitioners – one of whom must be a psychiatrist – who have assessed whether the individual is capable of acting on their own behalf.
A curator bonis handles financial matters and must provide security as well as regular updates and a detailed administration account to the Master of The High Court each financial year end. A curator ad personam handles personal affairs like medical consent and living arrangements.
Curatorship applications cannot be put in place overnight. There are costs involved in the application, and curators are also entitled to ongoing compensation for their services.
Is a court-appointed administrator a viable alternative to a Curator?
The appointment of an administrator is certainly a simpler and less expensive alternative to the appointment of a curator bonis, BUT is only available in the case of a diagnosis of a mental illness or a person with severe or profound intellectual disability.
There is also a limit on the size of the person’s estate: the Master of the High Court can appoint an administrator under the Mental Health Care Act only if the incapacitated individual has assets less than or equal to R200,000 and annual income less than or equal to R24,000 (accurate at the time of writing – May 2025).
How to stay ahead of The Unexpected:
At Netto Invest we have years of experience in helping clients and their families navigate the need for Power of Attorney and other essential interventions at different life stages. It’s important to keep your will and beneficiary nominations up to date. Once you lose the ability to physically sign documents with ease, or intellectually to explain the purpose and consequences of your actions, you will not be able to update an existing will, sign a new will, or update your beneficiary nominations.
Speak to your financial adviser at your next annual review about how to ensure that your personal and financial affairs can be managed smoothly, even when you are no longer able to make the necessary decisions.
By Morné Bezuidenhout, CFP®
B.Com LLB
