Power of attorney

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HavocXphere

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A friend of mine had a serious near fatal car accident recently so I've been thinking more about "the end game" lately...making sure all the angles are covered.

Obviously a will is needed.

It seems to me that SA law does not provide a way for me to issue what is know as an enduring power of attorney. i.e. I can issue a power of attorney but it fails as soon as I'm no longer capable of making decisions...which is right when I'd need said power of attorney to kick it.

Specifically interest in the medical side as well. I know we've got a DNR equivalent in SA but I'd rather empower another person to decide dynamically...

Any clever plans to get around this?
 
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Paul Hjul

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HavocXphere said:
It seems to me that SA law does not provide a way for me to issue what is know as an enduring power of attorney. i.e. I can issue a power of attorney but it fails as soon as I'm no longer capable of making decisions...which is right when I'd need said power of attorney to kick it.
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Not really sure what you mean here
 
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Paul Hjul

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ah right

Okay now I am with you - its the agency dependent on principal capacity dillemma, which some jurisdictions have provided a statutory "remedy" for.
Remember DNRs have been held valid in SA, notwithstanding the problems which have crept in with a duty to provide emergency treatment [off the top of my head I can't think of any coverage in law journals but it certainly is something the SAMJ has covered the subject] and an instruction properly given or contract properly entered by somebody who is competent doesn't always lapse.

There is a curator shortfall in our law and probably a general need to reform the master's court concept but as for the specific problem of an enduring power of attorney I am disinclined to agree with a statutory intervention of the manner of an enduring power of attorney.
 
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HavocXphere

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Thanks Paul

>>an instruction properly given or contract properly entered by somebody who is competent doesn't always lapse.

So what would it take to make this stick? Not just medical - suppose I want to empower a trusted person blindly under certain conditions.
 
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Paul Hjul

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HavocXphere said:
Thanks Paul

>>an instruction properly given or contract properly entered by somebody who is competent doesn't always lapse.

So what would it take to make this stick? Not just medical - suppose I want to empower a trusted person blindly under certain conditions.
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this is one of those "sit down with your trusty attorney" situations, but the empowering a person blindly under certain conditions is not going to happen

The broader subject though is interesting and has been the subject of quite a bit of coverage. A lot of which though has come from the perspective of ignoring the issue of status and capacity.
The 2013 volume of de Jure has an interesting article whose footnotes are of interest [granted can we really trust the 2013 volume of de Jure :D] and the Law Commission has recommendations - which as is the course have not been implemented
 
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HavocXphere

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>this is one of those "sit down with your trusty attorney" situations

And pray he has a better plan than you? Doubtful.

>empowering a person blindly under certain conditions is not going to happen

That kinda blows.

Why can't I just write a contract giving person X certain powers? Contract law says I need to meet the requirements at the time of the contract (now), not in 50 years time (when I'm a little shaky)? Surely I can bind my future self to something? I can do so for debt and all kinds of crazy stuff...
 
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Paul Hjul

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HavocXphere said:
>this is one of those "sit down with your trusty attorney" situations

And pray he has a better plan than you? Doubtful.
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No, its because you would need to go over a lot of specifics and details

>empowering a person blindly under certain conditions is not going to happen

That kinda blows.

Why can't I just write a contract giving person X certain powers? Contract law says I need to meet the requirements at the time of the contract (now), not in 50 years time (when I'm a little shaky)? Surely I can bind my future self to something? I can do so for debt and all kinds of crazy stuff...
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You can give somebody a contract that has specific implications that is future binding but not to the general nature you are suggesting - and for what it is worth statute and equity frequently collude to restrict long and indeterminate contracts (look at the CPA) -- hence my statement about blind empowerment not going to happen (even where "enduring power of attorney" is provided for in statute [and the proposed legislation to accomplish that in SA] doesn't provide for blind powers.

You can also prepare an application for somebody to be appointed as a co-curator over your estate under certain circumstances and have an affidavit and testimonial put together allowing such a person to bring a rule 57 application as soon as there is a medical report to support. But because of the de facto requirement of having an advocate as the curator ad litem the powers won't be "blindly" and there is a costs factor, and you'll need to have dealt with your trusty attorney.

[A man suffering from a degenerative condition fearing entering a state of insanity can have his affairs in order such that his wife has a power of attorney and the requisite measures to ensure the appointment of a curator on the condition arising]

This is one of the many areas where the law is an ass but there are complications and you are dealing with a deeply troublesome conundrum- particularly when you evaluate the bigger picture rather than the simpler desire that somebody take charge when you are in an accident. As I said there is a deficiency in the law that needs quite a bit of a clean up but I am not altogether in favour of the enduring power of attorney model as it is an application of a clumsy tool to a problem.
 
Garson007

Garson007

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The question is why would you want someone emotionally and financially invested in you, make decisions for you when you are unable? I'd much rather trust that the medical professionals are doing the job they've been doing for decades.
 
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HavocXphere

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Thanks for the detailed write-up Paul.

Seems there really is no way around this aside from making it specific. :(
 
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