Page 79 - PHG_Q&A_Eng.indd

prudent to timeously consult your attorney for guidance, particularly if failing to
meet deadlines could hold contractual repercussions for you or your business.

Does a power of attorney lapse in death?

March 2018

“My uncle is retired and spends a large part of his time travelling overseas.
Because he is often out of the country, he provided me, through a Power
of Attorney, with the authority to conclude a sale transaction of his beach
house on his behalf. A good offer was made which I accepted and signed the
agreement of sale. Unfortunately, my uncle tragically passed away but before
the property has been transferred. The buyer wants to continue, but I’m unsure
whether I can still represent my uncle now that he is deceased?”

It is a general principle in our law that no person may act on behalf of another,
unless he has the necessary authority to do so. Such authorisation is commonly
referred to as a Power of Attorney (“POA”).
A POA is a formal document in terms of which the principal (the person who
provides the authority) empowers an agent (the person entrusted with the
authority) to conclude certain juristic acts on his behalf.
A validly authorised agent may perform all of the actions (but not more) set out
in the POA, on behalf of his principal and the principal will be bound thereto.
The signing of a POA does not only authorise the agent to act, but also informs
third parties that the principal intends to be bound by the acts performed by
his agent.

In terms of our law, an agent may only perform such acts as the principal himself
has the legal capacity to perform. Accordingly, a POA is automatically and by
legal implication revoked when the principal becomes mentally incapacitated,
insolvent or passes away. In the case of the death of the principal, the reasoning Litigation
is that the deceased person cannot conclude any juristic acts anymore and so
the authority conferred on the agent to perform juristic acts, also ceases on the
death of the principal. This will be the legal position, irrespective of the wording
of the POA, even including attempts to cater for the situation of the death of the
principal.
In your situation, your late uncle’s estate will need to be reported to the Master
of the High Court and an executor will be appointed to administer his estate.
Because of your uncle’s death, your POA will accordingly have ceased. However,
since you signed the agreement of sale before your uncle passed away, the
POA was valid at the time and the contract will be binding on the executor,

74