If you are planning a trip overseas for a holiday or for work, or even more so, if you are planning to emigrate, you will inevitably leave behind some unfinished business and/or financial affairs, which you must attent to in the time of your absence and which you may or may not have foreseen. If you own a property, hold a bank account, pay taxes, have cars to be licensed, or anything else which may require your future signature, might just become urgent in the time of your absence. How can this hurdle be overcome? Consider executing (before you leave of course) an appropriate Power of Attorney (“POA”) in favour of someone you trust, to act on your behalf, while you are Abroad.
What is a ‘POA”?
A “POA” is a legal document which you sign authorising someone else, your Agent, the authority to take action on your behalf. You can give a “POA” for a specific purpose, in which case such a “POA” will be a “Special Power of Attorney”, or you can give your Agent a “General Power of Attorney”, which will give your Agent extensive authority to make legal decisions on your behalf for all and any purpose, such as your property, or finances, depending on the terms of the POA. In theory you can grant a power of attorney orally, but in practice no one will (or should) act on that or accept (or should) such a “POA” to act.
There are no legal formalities to adhere to when drafting a “POA”, but you must be at least 18 years old to give a “POA”. The “POA” will remain valid for so long as you have “legal capacity”, to act yourself or until such time as you terminate the “POA”.
Why is a “POA” important?
You can execute and sign contracts, legal forms and the like whilst in a foreign country, but it can be a real mission. Depending on the circumstances, you may need to find (and pay) a notary public or embassy/consular official to authenticate documents, your signature, copies of papers etc. If it’s an embassy or consulate you need, you could find yourself travelling to another city, perhaps even another country. If everything is not done exactly right the first time (a particular risk if you are dealing with someone not fully versed in South African law and procedure), you could find yourself repeating the process. This is all avoidable if you have granted your appointed Agent a power of attorney in South Africa to act on your behalf by way of a valid and correctly structured “POA”.
How should you structure it?
It can be a challenge to find the correct wording to satisfy the requirements of whichever authority or other party is involved – for instance, the Deeds Office and/or SARS requires specific wording in a “POA”.
There is however no prescribed form and no list of required formalities for a valid “POA”, except as alluded to above, but there are many possible legal risks involved, and the only way to ensure that your “POA” is valid and a fit-for-purpose document, is to seek professional assistance. Please contact us for any assistance in this regard.
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