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Powers of attorney…can this expedite the transfer process?

By Sarikha Singh

Powers of attorney are often used in property transactions where one of the parties for example, lives overseas or is out of the country for a short period of time. Using a power of attorney can expedite transfer but bear in mind that certain documents such as affidavits would still have to be signed in person, and authenticated at for example, an overseas embassy.

“Powers of attorney is normally drafted by a person who wants to make provision for someone else to manage their property and affairs. Often the intention is to cater for when they are no longer able, capable or available of doing so for themselves. They then give such authority to a family member, friend, attorney or financial adviser to do so on their behalf,” says Karien Hunter, licence partner of Engel & Völkers Dolphin Coast.

In certain circumstances the banks would allow for the signature of loan agreements and bank documents under power of attorney. Powers of attorney however lapses in the event of death or mental incapacity.

In simple terms a power of attorney is defined as: A written document in which one person appoints another person to act as an agent on his or her behalf, thereby conferring authority on the agent to perform certain acts or functions on his or her behalf. The following prescriptions apply:

  • The person granting power to the agent does so in writing and in the presence of two witnesses.
  • Powers of attorney executed outside the country must follow the correct authentication processes.
  • In terms of the Deeds Registries Act 47 of 1937, a power of attorney to transfer a property, must be registered in the deeds office.
  • The conveyancer attending to the transfer will add the power of attorney to his/her lodgement set.
  • The person granting the power can do so only if he/she is over 18 years of age and have mental capacity. The agent receiving the authority to act, must also be over the age of 18 years.
  • Powers of attorney can only be granted in respect of actions that the grantor already have the right and capacity to carry out, and no more.

There are two kinds of powers of attorney

  1. General powers of attorney

Under this power of attorney, the agent is given authority to act generally on behalf of someone else. A general power of attorney is wide and all-encompassing.

If a person wants the agent to sign documents or enter transactions or agreements on his or her behalf, then a general power of attorney would be advisable. This allows the third party to authorise the transactions, agreements, or conduct various activities on behalf of the grantor and is generally used where there is a physical disability.

  1. Special power of attorney

Under a special power of attorney, the agent is given authority to act in a specific transaction and the power to act would come to an end once such action has been performed.

Termination of the power of attorney

A power of attorney is generally terminated when the grantor dies or becomes incapacitated. The grantor can revoke the power of attorney at any time.

Article supplied by Engel & Völkers of Southern Africa

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