POWERS OF ATTORNEY AND THE TRANSFER PROCESS
Category Legal
There are two types of Powers of Attorney that need to be distinguished between:
1. General powers of attorney:
This type of power of attorney gives a wide range of authority to the appointed agent.
Be it to sign transfer documents, make and receive payments, enter into agreements and the list goes on, in such cases a general power of attorney would be required. It is advisable to ensure that your general power makes provision for all the required activities that would be needed to give effect to the wishes of the principal giving the power.
This is generally used where there is a physical disability or the grantor is at a different place and unable to perform these actions in person.
It is important to note that a general power of attorney lapses upon the death of the principal, revocation by the principal, or mental incapacity.
2. Special power of attorney:
This type of power of attorney is given to execute a specific action or transaction and comes to an end once this action or transaction has been performed.
These are most commonly used during the property transfer process to execute documents in the deeds office and to effect transfer on behalf of the seller to the purchaser.
The same as with a general power of attorney applies, that the person giving the power needs to be of sound mind and that it will lapse at death or revocation by the grantor.
The following requirements need to be considered:
- A power of attorney can only be granted by a person older than 18 years and of sound mind.
- The power of attorney needs to be in writing and signed in the presence of two witnesses signing in their capacity as witnesses.
- A power of attorney to pass transfer of a property needs to be registered in the deeds office.
- If a power of attorney is executed outside of the country the correct applicable authentication process needs to be followed and will be dependent on the country of execution, as we are bound to follow two different authentication processes and requirements subject to the country of execution.
- A person can only grant a power of attorney for a right that they have in their personal capacity.
- A power of attorney can only be granted to a person 18 years and older and of sound mind.
For any advice on or the drafting of a power of attorney reach out on any of the below contact details.
Author: Jaco Smit
