A POWER OF ATTORNEY, IS IT ENOUGH?

Capacity in the legal sense is a threshold requirement for persons to retain the power to make decisions for themselves.  In South Africa the law of agency is based upon the principle that an agent cannot do that which his principal has no capacity to do himself.  In other words, one cannot authorise someone else to perform acts that you yourself do not have the capacity to perform.  In order for the power of attorney to be valid, the principal must have the necessary contractual capacity.

A legitimate expectation of the law is that it should establish a structure within which appropriate autonomy and self-determination is recognised and protected. Such a structure should provide appropriate substitute decision-making devices and the necessary protection from abuse, neglect and exploitation.

Persons with limited capacity to contract, such as minors, may grant powers of attorney only in so far as the powers conferred fall within the limits of their contractual capacity. A power of attorney granted by a person who is incapable of managing his own affairs through mental disorder is normally invalid, even if granted before he became so incapacitated.

At present the law deals with decision-making incapacity by way of curatorship. The curatorship system has been criticised on the ground that if suffers from a number of serious and frustrating difficulties mainly relating to its high cost, prolonged procedure, paternalistic nature and potential for abuse.

The present mechanisms to identify incapacity for legal purposes are based on the premise that a person is presumed to have the requisite capacity.  A lack of capacity must be alleged and proved before a Court in order that it may decide the issue. The onus is upon the person alleging lack of capacity to prove this allegation.

Against the above background the South African Law Reform Commission, provisionally proposed that a change to the law is necessary to provide for the following:

• An alternative to the curatorship system, without abolishing it.

• Introduction into our law of the concepts of the enduring power of attorney and the conditional power of attorney. (An enduring power of attorney endures the subsequent incapacity of the person who granted it, while a conditional power of attorney comes into effect only on incapacity.)

It needs to be notes that it has been 10 years since the above was introduced and the matter is yet to be taken further.

Alternative possibilities:

1. In this instance an option would be to apply to court for the appointment of an administrator or a curator, depending on the circumstances.  The application is usually brought by next-of-kin, but can be brought by any person with a sufficient interest in the person concerned.  The person against whom the declaration is claimed must be properly represented by a curator ad litem.  The Court, after hearing all the medical and other evidence, if satisfied that the person is mentally ill, and as such incapable of managing his or her own affairs, makes the declaration.

2. Another alternative would be to set up a family trust, which itself takes time and could be overly complex.

3. Although not considered a legal document, an advance directive (also known as a living will) allows people with dementia to outline the treatment and care they would like in the future, when they may not be able to communicate their wishes – this however does not make provision for another to manage their property and affairs.

In light of the above it is clear that a power of attorney is of little or no value to someone who fears that their mental capacity is weakening or may be weakened in the future and who wants someone to act on their behalf if and when that situation arises.

Should a similar situation arise and you are unsure of the legal consequences, rather approach an attorney to assist you and to make sure that everything is in compliance with the law.

Compiled by Melanie Visagie

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

Reference List:

• Lexis Nexis
• Wille’s Principles of South African Law 55.
• Molyneux v Natal Land & Colonization Co Ltd [1905] AC 555(PC) at 561.
• Phil Morkel Bpk v Niemand 1970(3) SA 455 (C) at 456.