Power of Attorney: Can it lapse?

A power of attorney is a useful tool that can be used in many situations. For example, an elderly parent who, due to their age, finds it difficult to attend to their affairs may decide to grant power of attorney to their adult child.

The process to approval for extending a Sectional Title Units

This legal document allows an individual (the principal), who has full contractual capacity to manage their affairs, to appoint someone (the agent) to perform certain acts on their behalf.  

Many people don’t realise that a power of attorney can automatically lapse. As an agent can only do what a principal can do legally, a power of attorney automatically lapses when: 

  • The principal dies
  • The principal’s estate is sequestrated
  • The principal becomes mentally incapacitated i.e. the principal is incapable of making their own decisions as they no longer appreciate the legal nature and consequence of their decisions.

When a power of attorney lapses, it becomes void and the agent no longer has the power to act on the principal’s behalf. It’s important to note that should an agent act on the authority of a lapsed power of attorney, they may become personally liable for any damages suffered, as they have no legal authority to act.

 What happens in the event of mental incapacity?

If someone lacks the mental capacity to act, due to dementia, stroke or other medical condition, the High Court may be approached to appoint a curator bonis. Alternatively, in specific instances, the Master of the High Court may be approached to appoint an administrator in terms of the Mental Incapacity Act.

Follow Snymans on Facebook for more legal information, tips and news about property.

Recommended for you

Property Blog Articles | Advice | Contractual Matters | Market News
Contractual Matters

Buying and selling property – the implications for married foreign nationals[post_view before=""]

In a recent article, we looked at the question of whether foreign nationals are permitted to own property in South Africa. A related question is what happens when a foreign national, who has entered into a marriage outside of South Africa, wishes to buy or sell property. Let’s take a look.

Read More
Property Blog Articles | Advice | Contractual Matters | Market News
Contractual Matters

Foreign property ownership in South Africa[post_view before=""]

Can foreign nationals own property in South Africa? The short answer is yes. But before we explore this topic in any detail, let’s first define what we mean by foreign national – someone who is a non-resident, meaning that they are neither ordinarily resident nor meet the requirements of the physical presence test.

Read More
Property Blog Articles | Advice | Contractual Matters | Market News
Contractual Matters

Why identifying the ultimate beneficial owner matters[post_view before=""]

In the past, detecting funds from unlawful activities as they entered the financial system was relatively straightforward. However, with the dishonest among us increasingly making use of juristic or corporate entities to hide their true identities and introduce illicit proceeds into the system, it’s becoming more and more difficult for the relevant authorities to identify these funds. And it’s not only South African officials who find themselves in this position – the challenge cuts across international borders.

Read More
Minors and immovable property
Contractual Matters

How does divorce affect transfers in the case of joint ownership?[post_view before=""]

The end of a marriage can result in several administrative challenges, not least of which is tackling the joint ownership of immovable property. And while divorce can be a traumatic and emotional experience, with the proper legal advice, the transfer of ownership doesn’t need to be.

Read More
My name has changed - what happens to my property’s title deed?
Contractual Matters

Cheques are a thing of the past[post_view before=""]

In a statement issued late last year, the South African Reserve Bank informed the public that, “the issuing and the acceptance/collection of cheques will cease, effective from 31 December 2020.” At the time, most banks had already begun phasing out this form of payment, with clients making use of cheaper, more convenient electronic payment methods.

Read More

Need more Snymans content?

Sign up for our monthly newsletter.

Power of Attorney: Can it lapse?

A power of attorney is a useful tool that can be used in many situations. For example, an elderly parent who, due to their age, finds it difficult to attend to their affairs may decide to grant power of attorney to their adult child.

The process to approval for extending a Sectional Title Units

This legal document allows an individual (the principal), who has full contractual capacity to manage their affairs, to appoint someone (the agent) to perform certain acts on their behalf.  

Many people don’t realise that a power of attorney can automatically lapse. As an agent can only do what a principal can do legally, a power of attorney automatically lapses when: 

  • The principal dies
  • The principal’s estate is sequestrated
  • The principal becomes mentally incapacitated i.e. the principal is incapable of making their own decisions as they no longer appreciate the legal nature and consequence of their decisions.

When a power of attorney lapses, it becomes void and the agent no longer has the power to act on the principal’s behalf. It’s important to note that should an agent act on the authority of a lapsed power of attorney, they may become personally liable for any damages suffered, as they have no legal authority to act.

 What happens in the event of mental incapacity?

If someone lacks the mental capacity to act, due to dementia, stroke or other medical condition, the High Court may be approached to appoint a curator bonis. Alternatively, in specific instances, the Master of the High Court may be approached to appoint an administrator in terms of the Mental Incapacity Act.

Follow Snymans on Facebook for more legal information, tips and news about property.