POWERS OF ATTORNEY versus CURATORSHIP

25 November 2020 2243

A POWER OF ATTORNEY is a formal written document setting out the scope of the agent’s authority which document is signed by the principal (grantor).

A special power of attorney allows an agent to do one act only.

A general power of attorney is a document that consists of a collection of special powers of attorney set out in a single document in other words it’s a document granting the agent to perform several tasks.

A power of attorney is terminated in the following ways:

On completion of the mandate;
On the cancellation or revocation of the power of attorney;
On expiry of the term for which the power of attorney was granted;
On the death, mental illness or sequestration of either the agent or the principal;

Our law stipulates that a Power of Attorney becomes inoperative the moment the grantor of the Power of Attorney loses capacity to act on his or her own behalf. It is therefore unlawful for an agent to act in terms of a Power of Attorney if he or she is aware that the grantor has lost capacity to act.

For this reason, there needs to be an application to the High Court appointing a CURATOR.

The most common are cases where a person is incapable of looking after their own affairs due to mental illness in most cases brought about by old age.

In accordance with Rule 57 of the Uniform Rules of Court, the High Court is requested to make an order declaring the patient to be of unsound mind and incapable of managing his own affairs. Supporting affidavits by two medical practitioners, of which one must be a psychiatrist, must be provided.

The Court will then appoint a curator ad litem. This person will generally be an Advocate, or an Attorney nominated by the person bringing the application, whose duty will be to represent the patient and compile a report on the investigation into possible curatorship appointment candidates. The findings will then be presented to the Master of the High Court, as well as the Court.

It is imperative to remember that in South Africa, there is no legal enduring power of attorney. Thus, if the patient has given a family member or a friend a power of attorney to act on his behalf, this power of attorney falls away if the patient’s mental capacity diminishes below the legal threshold. Should this person continue to act in terms of the power of attorney, their actions could amount to fraud if they appreciated the wrongfulness of their actions.