Granting “Power of Attorney” means granting another individual the power to act on your behalf for whatever legal reason you grant them the power to do here in South Africa. It’s commonly referred to as appointing a “proxy”.
This is done by singing a Power of Attorney document.
You can grant someone the power to act on your behalf to for example;
- Manage your bank accounts;
- Pay your bills;
- Submit building plans to a municipality
- Obtain your personal information
- Sign documents to sell or purchase any property (immovable, tangible or not)
- to open and close accounts on your behalf;
These types of documents are called a Special Power of Attorney, because they grant someone the power to act on your behalf regarding something special or specific.
a General Power of Attorney is a bit different, because you grant someone the power to act on your behalf in general and for everything and anything you can think of.
You cannot grant someone the power to enter into marriage on your behalf, consent to your own damage or sign a Will and Testament on your behalf.
WHO CAN GRANT A POWER OF ATTORNEY?
Every natural person with the mental capacity to do so, can grant someone else the power to act on their behalf.
To determine if you have the mental capacity to grant someone else Power of Attorney, the test is a simple 2-fold question, when signing the document;
- do you understand what you are signing in granting someone the power to act on your behalf? and
- do you understand the consequences of granting someone the power to act on your behalf?
A natural person cannot grant power of attorney to anyone if he/she does not have the mental capacity to act on their own. In such an event, application for curatorship is to be made to the local High Court. This is a separate process and act altogether. Your family, spouse or caregiver will have to approach a general litigation attorney to assist you in this process.
CAN A LEGAL ENTITY GRANT POWER OF ATTORNEY TO SOMEONE TO ACT ON ITS BEHALF?
YES
Due to the nature of a Company/Trust/other legal entity, it is regarded as a separate entity, yet requires natural persons to physically sign documents and act on its behalf.
The director/trustees of the Company/entity enter into a resolution to appoint a natural person to act on its behalf for various operations and/or reasons. Some of the documents are called resolutions and others are Power of Attorney documents. A natural person is appointed to act by way of these documents.
TO WHOM CAN I GRANT POWER OF ATTORNEY TO MANAGE MY AFFAIRS?
You can only grant power of attorney to someone that is 18 years or older and who is capable and mentally competent to act in your place.
You must trust the person you choose to act as your proxy, unreservedly. People normally choose or elect their spouses, children, parents or even their accountants or own personal attorneys – depending on the reason or duties that are required to be fulfilled in terms of the Power of Attorney document.
FOR HOW LONG IS A POWER OF ATTORNEY DOCUMENT VALID?
Once you have granted someone Power of Attorney to act on your behalf for whatever reason, they have your authority to do so and can proceed as such, until you withdraw your instructions or until your mental capacity is at a stage where you fail the 2-fold test above.
PROCESS TO FOLLOW
Any attorney or Notary Public can assist, depending on the reason for which you require it the document.
Process to follow;
- Attorney/Notary Public drafts the Power of Attorney document,
- You need to sign the document in the presence of 2 competent witnesses.
- The document is provided to the person you choose to act on your behalf so they can proceed to use the document for its intended purpose.
It’s practical to have more than one of these documents drafted and signed. In most cases, if your proxy provides it to 3rd party (e.g. Bank), they will require that your proxy hands over the document to them for safe keeping. Having more than one original document available is practical.
CAN THE DOCUMENT BE USED OUTSIDE OF THE COUNTRY?
If signed only in the presence of 2 witnesses, the document can only be used in South Africa.
For the document to be used outside of South Africa, it must be signed and legalised by way of one of the following options;
OPTION A
- The Power of Attorney document must be signed at the Embassy in the presence of the duly appointed staff member of the Embassy that has the authority.
You need to sign the document at the Embassy of the country where you wish for the Power of Attorney to be used.
- Ship the original signed document to your proxy in the country where you require it to be used.
For Example, if you require a family member in London to assist with signing paperwork for the opening of your UK bank account, then you have to attend the British Embassy in either Cape Town or Johannesburg to sign the Power of Attorney document there at the UK Embassy. You then have to ship the document back to the UK, where it needs to be used and where your proxy is physically able to act on your behalf. You need to appoint a person in the country where you need to work to be done.
If you are not close to the Embassy or there is no Embassy here in South Africa, then
OPTION B
- You sign the document in the presence of a Notary Public only (no other person will suffice).
- The document must be legalised/apostilied by the local High Court (the Notary attends to this for you at a fee).
- Once the document is returned from the Court and provided to you by the Notary, then the original document must be shipped to the country where you need it used.
Option B can however only be followed for a country that is part of the Den Hauge Convention, otherwise the Embassy is the only option for signing the documents so that it can be used in another country.
Disclaimer: Although I am an attorney by profession, I am not YOUR attorney. This article is for informational and educational purposes only, does not constitute legal advice and does not establish any kind of attorney-client relationship with me. I am not liable or responsible for any damages resulting from or related to your use of this information.