General or Special power of attorney?

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General or Special power of attorney?Special and General powers of attorneys are useful tools in property transactions.

What is a power of attorney?

A power of attorney (hereinafter referred to as “POA”) is a legal document authorising someone (an agent) to perform certain/general acts on behalf of the person giving the authorisation (the principal).

When would I need a Power of Attorney?

POA’s are mostly used for sake of convenience, where a person is overseas or unavailable to perform an act in person.  For example, where a person purchases a house in South Africa, but they are working overseas, then they would be able to sign a POA giving someone authority to sign the necessary documentation on his/her behalf here in South Africa.

Are there different types of POA’s?

Yes:

  • A Special POA grants specific (limited) powers to the agent to perform a specific task or action. For example, to purchase a house and sign all transfer & bond documentation with regards thereto.
  • A General POA grants wide powers to the agent to attend to various general actions on the principal’s behalf.

What makes a POA valid?

  1. A POA must clearly define the principal, the agent and task/acts that are authorised;
  2. It must be signed by the principal in the presence of two independent witnesses preferably in black ink;
  3. All pages should be initialled by all parties;
  4. The principal must be alive (the POA dies with the principal);
  5. The principal must have legal capacity (ie. he must be of sound mind).
  6. If signed outside of South Africa, it will need to comply with Rule 63 of the High Court Rules

Must a POA be registered in the Deeds Office?

  • For a Special POA registration is not required as the power of attorney is only for a specific task or action, so once the task/action is completed, it is no longer required. The originally signed special POA will need to be lodged in the Deeds Office with the transaction.
  • For a General POA it depends on the circumstances. A general POA grants various powers to the agent to perform various asks/actions on behalf of the principal.  If the general POA is to be used for multiple transactions involving immovable property, then it should be registered in the Deeds Office in terms of Section 65(1) of the Deeds Registries Act, 47 of 1937 (hereinafter referred to as “DRA”).  Once registered, it will be allocated a reference number under the code PA, after which mere reference to the PA number will be sufficient and the original General POA will not need to be lodged for subsequent property transactions.

Can a General POA registered in one Deeds Registry be used in another Deeds Registry?

Yes. A Regulation 65 copy will need to be obtained and registered for this purpose.

Can a POA be cancelled?

Yes, the general rule is that a POA can be revoked at any time, however, there are exceptions to this rule.

How do I cancel a POA?

In terms of Regulation 65(12) of the DRA, a notice of the revocation of any POA filed in a Deeds Registry will only be recognised if it is signed by the principal or by some person expressly authorised by him in writing to revoke same.  It is suggested that notification of such revocation be given in writing to the agent.

Contact us to draft your Special or General power of attorney at info@smutsco.co.za

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE)