By Lavona Appanna /Associate / Mooney Ford Attorneys
As parents age, their children usually take on more of their administration. It often begins with paying accounts, dealing with the bank or collecting medication. Over time a parent may ask a child to sign documents on their behalf, manage their money or handle the sale of a property. These arrangements feel natural within a family, but the law sets clear limits on what a child can do, and acting outside those limits carries real consequences.
Being a child gives you no automatic legal authority:
South African law does not give an adult child the right to manage a parent’s financial or legal affairs. That remains true even where the child is the parent’s primary caregiver. A child cannot access the parent’s bank account, sign contracts in the parent’s name or sell the parent’s property because of the relationship. Banks, conveyancers and other institutions will ask for proof of authority, and informal permission from the parent does not meet that requirement for most transactions. The starting question is always what authority the transaction requires and whether the parent is legally able to grant it.
What does a power of attorney do:
A power of attorney is a document by which one person, the principal, authorises another, the agent, to perform specified acts on their behalf. A parent might authorise a child to deal with certain banking matters, sign documents in a property transaction or attend to administrative affairs. The document gives the agent only the powers written into it. It does not hand over general control of the parent’s affairs. It must also suit the transaction, and banks and conveyancers often impose their own requirements on wording, signature and supporting documents. A parent should grant only the powers they genuinely intend the agent to use.
Mental capacity decides whether the document is valid:
To grant a power of attorney, the principal must understand its nature and consequences. A diagnosis of dementia does not by itself remove that ability. Capacity is assessed against the particular decision, and a parent in the early stages of dementia may still be able to grant a valid power of attorney. A medical diagnosis is relevant evidence, but the legal question is whether the parent understands what they are signing at the time they sign it. If capacity is genuinely in doubt, medical and legal advice should be obtained before anything is signed. A power of attorney granted by a person who lacks capacity is invalid, however convenient it would be for the family.
Bank accounts:
If your parent wants your help with their banking, the bank may accept a mandate or similar arrangement on its own terms. The mandate allows you to assist. It does not make the money yours. You must act within the authority given and in your parent’s interests at all times. Once your parent loses capacity, the mandate no longer gives you a lawful basis to continue, and the bank must be approached to establish what it requires.
Does a power of attorney survive your parent’s death?
No. A power of attorney ends automatically on the principal’s death, regardless of what the document says. From the moment of death, the former agent has no further authority to act. Only the executor appointed by the Master of the High Court, once letters of executorship have been issued, may deal with the deceased’s assets. An agent who continues to sign documents or deal with the deceased’s bank account or property after death acts without authority and may face personal liability for doing so.
Selling a parent’s property:
A child cannot sell a parent’s property simply because they are helping with the parent’s affairs. Where the parent has capacity, they may grant a power of attorney authorising the child to act in the sale. A sale of land requires written authority for anyone signing as agent, and the conveyancer must be satisfied that the authority is sufficient. Where the parent has lost capacity, an ordinary power of attorney cannot be used. A formal appointment is needed, such as a curator with the necessary powers. Given the value and consequences of a property sale, the position must be settled before the process begins.
When a parent can no longer manage their affairs:
Where capacity has been lost and no valid authority exists, the family must use a formal process. There are two routes. The first is an application to the High Court for the appointment of a curator. This route is more costly and requires medical evidence. The second is an application to the Master of the High Court for the appointment of an administrator under the Mental Health Care Act 17 of 2002. This route is generally simpler and cheaper, but it is available only where the person is mentally ill or has a severe or profound intellectual disability. In both cases, the court or the Master decides who takes control. The family does not. The process involves legal costs, supporting evidence and continuing obligations to account for how the person’s affairs are managed. Legal advice should be sought as soon as it becomes clear that a parent can no longer manage on their own.
Preparing while your parent still has capacity:
The best time to address all of this is while your parent can still make and understand their own decisions. Families should take these steps.
- Establish whether your parent has already signed a power of attorney, bank mandate or similar document.
- Confirm exactly what that document permits and whether the intended bank or conveyancer will accept it.
- Ask your parent who they would want to assist them if they can no longer manage.
- Take legal advice at the first sign of declining capacity, before assuming a power of attorney will solve the problem.
- Treat your parent’s assets as theirs. Anyone acting for a parent must stay within the authority granted.
A power of attorney is a useful tool for as long as your parent has capacity. It cannot be relied on once that capacity is lost or upon death, and the time to plan is before that point arrives.
Mooney Ford Attorneys advises on powers of attorney, estate planning and the applications available where a person can no longer manage their own affairs.
This article is general information and does not constitute legal advice.
