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Generally, the contract will provide sufficient guidance to be able to clearly
establish what the relevant periods are. Should you however be uncertain or
have doubts regarding the exact interpretation of time periods, it would be
prudent to timeously consult your attorney for guidance, particularly if failing to
meet deadlines could hold contractual repercussions for you or your business.

Does a power of attorney lapse in death?

Lucian Edwill Companie
March 2018

“My uncle is retired and spends a large part of his time travelling overseas.
Because he is often out of the country, he provided me, through a Power
of Attorney, with the authority to conclude a sale transaction of his beach
house on his behalf. A good offer was made which I accepted and signed the
agreement of sale. Unfortunately, my uncle tragically passed away but before
the property has been transferred. The buyer wants to continue, but I’m unsure
whether I can still represent my uncle now that he is deceased?”

It is a general principle in our law that no person may act on behalf of another,
unless he has the necessary authority to do so. Such authorisation is commonly
referred to as a Power of Attorney (“POA”).
A POA is a formal document in terms of which the principal (the person who
provides the authority) empowers an agent (the person entrusted with the
authority) to conclude certain juristic acts on his behalf.
A validly authorised agent may perform all of the actions (but not more) set
out in the POA, on behalf of his principal and the principal will be bound
thereto. The signing of a POA does not only authorise the agent to act, but
Litigation performed by his agent.
also informs third parties that the principal intends to be bound by the acts

In terms of our law, an agent may only perform such acts as the principal
himself has the legal capacity to perform. Accordingly, a POA is automatically
and by legal implication revoked when the principal becomes mentally
incapacitated, insolvent or passes away. In the case of the death of the
principal, the reasoning is that the deceased person cannot conclude any
juristic acts anymore and so the authority conferred on the agent to perform
juristic acts, also ceases on the death of the principal. This will be the legal
position, irrespective of the wording of the POA, even including attempts to
cater for the situation of the death of the principal.

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