When a Power of Attorney May No Longer Apply

Many people have signed a Power of Attorney so that a trusted person can manage their affairs should they become unable to do so themselves. It is commonly assumed that this arrangement will continue to apply if someone becomes mentally incapable. However, under current South African law, a Power of Attorney automatically lapses once the person who granted it loses mental capacity. There are no legal exceptions to this rule.

If a person has already lost mental capacity and decisions need to be made on their behalf, the law requires that a curator bonis (custodian) be formally appointed through the Master of the Court. This process can unfortunately be both lengthy and costly, and it may place an additional burden on families during an already challenging time.

In practice, however, the situation is not always clear-cut. Many people experience some level of mental decline as they age, yet they may never receive a formal medical diagnosis stating that they have lost mental capacity. This creates a grey area: at what point does a decline in mental ability become significant enough for a Power of Attorney to be considered invalid?

For this reason, it may sometimes be worthwhile to have mental capacity formally assessed and documented — particularly if there is any possibility that the validity of a Power of Attorney could later be questioned. Similar considerations can apply when signing a will, which is discussed elsewhere on this website.

For readers who would like a more detailed explanation, a fuller article on Powers of Attorney is available on this site here.

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