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Article by listed attorney: NICOLENE SCHOEMAN
According to the free online dictionary, a power of attorney is defined as:
” A written document in which one person (the principal) appoints another person to act as an agent on his or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the principal.”
Most of us come across powers of attorney when we buy or sell fixed property. Powers of attorney are also particularly useful for practical delegation, continuity planning in larger organisations and in cases of illness or incapacity.
Types of powers of attorney
As mentioned, powers of attorney are routinely granted to allow the agent to take care of various transactions for the principal. By nature and form this is essentially a written document which was previously subject to stamp duty (until the repeal of the Stamp Duty Act 77 of 1968 in 2009).
In addition, powers of attorney executed outside the Republic must be executed in the presence of a notary public. Depending on where it was executed, it must also be properly authenticated.
Where a power of attorney is to be used in property registrations, it must be registered in the Deeds Office, under the Deeds Registries Act 47 of 1937.
A power of attorney is generally terminated when the principal dies or becomes incapacitated. The principal can revoke the power of attorney at any time.
There are two kinds of powers of attorney: the general kind, in which the agent or attorney is given authority to act generally on behalf of the principal; or a special kind, in which in an agent is authorised to act and represent the principal in more specific transactions.
1. General Powers of Attorney
If you wish to authorise a third party to do things, sign documents or enter transactions or agreements on your behalf, then you may consider entering a general power of attorney. This allows the third party to authorise the transactions, agreements, or conduct various activities. A general power of attorney is wide and all-encompassing.
2. Special Power of Attorney
If a principal wishes to limit the agent’s authority to a specific, identified activity, the special power of attorney should be used. An example could be when you instruct a conveyancer to pass transfer or register a mortgage bond over fixed property, or you appoint an attorney to represent you in court or you give your attorney power to sign documents on your behalf.
Nicolene Schoeman, Schoeman Attorneys (Cape Town)
Tel: 021 425 5604