Power of Attorney: Can it be cancelled?
Power of Attorney is a versatile legal tool essential for various situations. In this exploration, we delve into its utility and the process of cancelling it when required.
A power of attorney is a useful tool that can be used in many situations.
For example, an elderly parent who, due to their age, finds it difficult to attend to their affairs may decide to grant power of attorney to their adult child. Or a couple who have moved overseas can grant power of attorney to a close family member to sign the transfer documents in respect of the sale of their property.
This legal document will allow an individual (who is called the agent), to perform certain acts on their behalf.
In our previous article, “Power of Attorney: Can it lapse?” we investigated and found that a Power of Attorney will lapse when:
1. The principal dies
2. The principal’s estate is sequestrated and
3. The principal becomes mentally incapacitated i.e. the principal is incapable of making their own decisions as they no longer appreciate the legal nature and consequence of their decision.
Our full article on Power of Attorney: Can it lapse can be read here.
What if the trust relationship ends and a Power of Attorney was granted or is no longer required?
Firstly, you will whether the Power of Attorney is General Power of Attorney or a Special Power of Attorney.
A General Power of Attorney gives the agent the power to act on behalf of the principal in respect of all of affairs of the principal. The agent will step into the shoes of the principal. This Power of Attorney is also registerable in the Deeds Office.
A Special Power of Attorney gives the agent the power to act on behalf of the principal in respect of a specific matter. The Special Power of Attorney is not registrable and will lapse once the specific listed matter is finalised.
The original General Power of Attorney which was registered in the Deeds Office can be formally cancelled in the Deeds Office and the cancelled General Power of Attorney can be handed back to the principle for destruction after formal notice was given to the agent that the power of attorney is cancelled.
However, in the situation where the General Power of Attorney is not registered in the Deeds Office or in the situation of a Special Power of Attorney is given to an agent it is important to give formal written notice to the agent that you (the principal) is withdrawing and cancelling the power given. It is further vital to request and obtain the original power of attorney back from the agent as third parties will not know that the power of attorney has been withdrawn and cancelled if they receive the original from the agent.
It is advisable to attend to a formal affidavit to confirm that the power of attorney has been withdrawn and cancelled together with proof that the notice of cancellation has been given to the agent. This may safeguard in a damage claim as a result of an agent acting on your behalf after the power of attorney was withdrawn and cancelled.
Written by: Jean-Mari De Beer – Le Grange
Moderated and approved by: Glenda Nell
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