Generally, in our law, one can authorise a representative by oral or written means, without having to meet any formalities. However, one exception is contained in the Deeds Registries Act which provides that a conveyancer may not execute a deed of transfer of an immovable property or a mortgage bond before a registrar of deeds unless he or she is authorised to do so “by power of attorney”.

To be acceptable to a deeds registrar a POA must be in writing and attested by two witnesses over the age of fourteen years, or by a commissioner of oaths, magistrate or justice of the peace.

Other than when required by a conveyancing attorney as described above, our law doesn’t in fact apply any formalities for the making of a POA. In theory, you could authorise someone by mere word of mouth to sell your car or draw your life savings from your bank account! Understandably the other party to a transaction (eg. your bank) may be hesitant to accept the word of your appointed representative as to his or her bona fides. Thus for practical reasons it has become practice whenever a POA is required to apply the formalities set out in the Deeds Registries Act. By rights the simple presentation of the POA by the representative should be

sufficient legal proof of the bearer’s authority. However, most banks will not accept their client’s own power of attorney but will require a client and his or her representative to personally visit a branch to complete and sign the bank’s form of POA.

Powers of attorney can be “general” or “special”. A general POA is one where the representative is given the authority to act on behalf of the principal in all matters, while a special POA is one limited to a number of actions, even though the actions listed may be numerous.

A drawback in connection with POA’s is that it can only be acted on by the representative while the grantor (principal) still has the capacity to act himself. Some jurisdictions recognise “enduring” powers of attorney in terms of which the representative remains empowered even after the principal loses his capacity. South African law does not recognise the enduring POA; if a principal loses his capacity to contract, for example he falls into a coma, or is declared mentally incapable of administering his affairs, then his representative equally loses the authority to act on his behalf using a POA even if it was executed when he had capacity.

Clearly a POA cannot be used to transact on behalf of a principal who has died; the POA “dies” with the principal and only a properly

appointed executor may act on behalf of the deceased estate.
A danger in signing a POA is that although it can be revoked by notice to the representative, it isn’t easy for a principal to notify the world at large of this. If the representative presents the POA to an unknowing third party who is induced to act

on the face value of the POA, the law will protect that innocent third party.
A power of attorney can be a very useful tool to ensure that trusted persons can look after your affairs when you are unable to do so, but their limitations and pitfalls should be considered