People often find themselves in situations where they require someone else to sign documents or enter into a contract on their behalf due to geographical limitations or time constraints for example.  South African law makes provision for temporary authorisation to be given to a trusted third party, for general or specific purposes, in the form of a Power of Attorney.

A Power of Attorney is a document giving one person (the agent) the written authority to act on behalf of another person (the principal).  It is important to note that this kind of authority is both limited and temporary in nature.

It is limited in that no person can give another party more power than what he has; temporary in that a Power of Attorney lapses where:

1.    the principal retracts the Power of Attorney;
2.    the action authorised in terms of the Power of Attorney, is completed; and
3.    the person giving the authority loses the capacity to act legally.

Although the concept of a “durable Power of Attorney” – one which remains effective even after the person by whom it was given loses capacity to act for themself– is a reality in other parts of the world, it is not so in South Africa yet. There have, however, been various proposals from institutions such as the South African Law Reform Commission, who have suggested that this should become a part of our law.

Therefore, in the event where a person has become mentally incapacitated and the Power of Attorney therefore lapses, a High Court application would have to be brought for the appointment of either a curator or an administrator, depending on the circumstances.

The differences between the application for the appointment of a curator and that of an administrator are technical in nature and it will be best to consult an attorney to obtain advice on how to proceed before making any decision, so as to avoid wasting both time and money.