IS AN ENDURING POWER OF ATTORNEY
BINDING IN SOUTH AFRICA?
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.
