When a Power of Attorney May No Longer Apply

Many of us have signed a power of attorney to allow another person to conduct our affairs if we are
unable to do so. However, what is less widely known is that such a document may no longer be valid
when it is most needed.
In South Africa, a power of attorney lapses automatically if the person who granted it loses mental
capacity. Under current law, there are no exceptions to this.

There are alternatives, but they are not always simple. If a person has already lost capacity, a
custodian (curator bonis) would usually need to be appointed by the Master of the Court. This can be
a lengthy and costly process.

As with many things, there can be a gap between the formal rules and everyday reality. It is unlikely
that a person will have been formally diagnosed as having lost mental capacity at the point when
difficulties begin, even if those close to them have noticed changes.
Many people experience some decline in mental ability as they age, but it is often unclear when this
crosses the line into a loss of legal capacity. That uncertainty can sometimes lead to disputes about
whether a power of attorney was still valid at a particular time.

In situations where a power of attorney might later be questioned, some people consider whether it
may be helpful to have mental capacity confirmed, in much the same way that capacity can be
relevant when making a will. see the other section.
A more formal write up on power of attorney is on this site. Load article on PoA