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Is An Enduring Power Of Attorney Binding In South Africa?

Does my mom’s power of attorney endure if she can’t manage her affairs?

A person has full contractual capacity if he or she can conclude a legally binding contract. A party’s contractual capacity may be affected by mental illness, intellectual disability, physical disability, head injury, an extended period of unconsciousness, stroke or extreme old age, etc.

In some countries, a person can make an Enduring Power of Attorney for his or her property or personal care and welfare. The Enduring Power of Attorney for property will take effect at any time or only if the person becomes mentally impaired. The Enduring Power of Attorney for personal care and welfare will only begin when he or she is no longer capable of making personal decisions to deal with their own affairs, due to any of the above reasons.

In South African law, there is no such concept. If you execute a special (for limited purposes) or a general (an all-encompassing) power of attorney in favour of someone (called your agent) the agent’s authority to act under that power of attorney ends on your death, insolvency or incapacity (where you are unable to make rational decisions or are incapable of managing your own affairs).

So, if the power of attorney ends, what’s next?

If the value of your mom’s estate exceeds R 200,000 and his annual income is more than        R 24,000, then we must apply to court for the appointment of a curator bonis or curator ad personam, to manage her affairs. This is a hugely expensive business.

The term “bonis” means “goods” (as in assets) in Latin. A curator bonis is concerned only with the financial affairs of the person. The curator ad personam (often the same person) is a person appointed by a court to manage the day to day personal affairs of a person unable to do so because of mental or physical incapacity.  The term “ad personam” means “for the person” in Latin.

If her estate and income, is less than R 200,000 and her annual income is below R 24,000, we can apply to the Master of the High Court in terms of the Mental Health Care Act, firstly to declare that your mom is mentally ill, and then for the appointment of administrator (usually an attorney) to care for and administer the property of the mentally ill person. This is a simpler and cheaper process.

 

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Tel: +27 (0)11 646-0335
Email: info@bmalaw.co.za

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