Power of Attorney: Can it lapse?
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.This legal document allows an individual (the principal), who has full contractual capacity to manage their affairs, to appoint someone (the agent) to perform certain acts on their behalf. Many people don’t realise that a power of attorney can automatically lapse. As an agent can only do what a principal can do legally, a power of attorney automatically lapses w
This legal document allows an individual (the principal), who has full contractual capacity to manage their affairs, to appoint someone (the agent) to perform certain acts on their behalf.
Many people don’t realise that a power of attorney can automatically lapse. As an agent can only do what a principal can do legally, a power of attorney automatically lapses when:
- The principal dies
- The principal’s estate is sequestrated
- 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 decisions.
When a power of attorney lapses, it becomes void and the agent no longer has the power to act on the principal’s behalf. It’s important to note that should an agent act on the authority of a lapsed power of attorney, they may become personally liable for any damages suffered, as they have no legal authority to act.
What happens in the event of mental incapacity?
If someone lacks the mental capacity to act, due to dementia, stroke or other medical condition, the High Court may be approached to appoint a curator bonis. Alternatively, in specific instances, the Master of the High Court may be approached to appoint an administrator in terms of the Mental Incapacity Act.
Written by Wessel de Kock
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