The ABC's of a GPA (general power of attorney)

A General Power of Attorney, or GPA, is a formal document which enables someone, or possibly more than one person, to act on your behalf. While this document is often useful in the efficient handling of another person's affairs, a lay person may not fully understand under which circumstances a GPA remains a valid mandate to act on someone else's behalf.

The requirements for a valid GPA are:-

• It must be in writing, and be signed in the presence of 2 witnesses (above the age of 14 and capable of giving evidence in court);
• The person granting the GPA must be an adult who has the capacity to enter into legal and binding contracts, and is able to manage his own affairs;
• The person granting the GPA can only grant such powers or capacity as he himself has, and this capacity to act must be present during the entire period of the validity of the GPA.

This raises a very important legal limitation - one cannot authorise someone else to perform acts that you yourself do not have the capacity to perform. The problem arises when a person's mental capacity starts to diminish, and they lose the capacity to act. Diminished capacity can include neglect of one's affairs, unusual or untoward transactions, and concerns relating to accountability and control. A GPA which was granted prior to the onset of a mentally incapacitating illness (such as dementia or Alzheimer's disease) will terminate as soon as a positive diagnosis has been made by a medical professional.

This flaw in our system will hopefully be addressed. In 2004 the South African Law Commission made recommendations in a discussion paper (Assisted Decision-making: Adults with Impaired Decision-making Capacity), and we understand a report was published in July 2019. Hopefully we will soon have something similar to the "enduring power of attorney" used in the UK, Canada, New Zealand and others, that remain in force despite mental incapacity.

We would be happy to discuss any of these issues with you, and whether you need assistance with a GPA, or the drafting of a will, you are invited to contact our qualified team at Longbourne.

Added 11 months ago