We often encounter clients who feel overwhelmed when a loved one becomes either physically or mentally unable to sign legally binding documents. The unfortunate irony is that the ability to execute legal documents is often most critical at precisely the moment when a person’s health deteriorates and delays in decision-making cannot be afforded. This article provides an overview of the legal position in South Africa regarding physical incapacity to sign, as opposed to mental incapacity, and outlines the practical solutions available to families.
South African law prescribes strict formalities for the execution of legal instruments such as powers of attorney and wills. These formalities exist to ensure that the person executing the document understands its contents and intends to be legally bound by it. Where a person is physically incapacitated, disabled, or illiterate, the law allows for the use of a mark — such as a thumbprint or a cross — in place of a traditional signature, provided that the prescribed formalities are properly complied with.
The Wills Act 7 of 1953 provides that where a testator signs a will by making a mark, a Commissioner of Oaths must certify that they have satisfied themselves as to the identity of the testator and that the document represents the will of that person. The Commissioner must sign each page of the will and must attach their certificate “as soon as possible” after the mark is made. A similar approach is followed by the Deeds Office when powers of attorney or transfer documents are executed and registered.
While physical inability to sign a document can therefore be accommodated through the use of a mark and a Commissioner’s certificate, the position is markedly different where mental incapacity is concerned. A person who lacks mental capacity is not regarded by law as having the necessary legal capacity to act. As a result, a mentally incapacitated person cannot validly execute a will, grant a power of attorney, or sign transfer or other legal documents.
It is important to note that legal capacity is assessed at the time the document is executed. A person who suffers from fluctuating capacity, such as in the early stages of dementia or mental illness, may still be capable of validly executing legal documents during a lucid period. However, this is a factual enquiry and must be approached with caution, as improperly executed documents are vulnerable to challenge.
The South African Law Reform Commission has been considering the introduction of an “Enduring Power of Attorney” (EPA) since as early as 2004. However, despite these discussions, the current legal position remains unchanged. Courts have consistently confirmed, including in cases such as Tibshraeny v Tibshraeny, that a power of attorney automatically lapses once the person who granted it loses mental capacity.
At present, the only legally recognised mechanism through which a family member or third party may assume control over the affairs of a mentally incapacitated person is by applying to the High Court for appointment as curator bonis, or curator ad litem, or applying to the Master of the High Court for an appointment as administrator in terms of the Mental Health Care Act No. 17 of 2002. Such applications generally require, among other things, detailed medical evidence confirming the incapacity, as well as supporting affidavits. Unfortunately, this process is not only costly but can also be time-consuming, which may have serious consequences for the care, protection, and financial well-being of the incapacitated individual.
In practice, families often only seek legal advice once a medical or financial crisis has already arisen. At that stage, the available legal options may be limited, costly, and time-consuming. Early planning while capacity is still intact, remains the most effective way to avoid unnecessary distress and litigation.
What can you do, and how can we help?
- A general or special Power of Attorney allows you to appoint a trusted person to manage your financial or legal affairs should you become physically incapacitated.
- Provided the correct formalities are complied with, a Power of Attorney may be validly executed by a person who is physically incapacitated.
- If you anticipate a decline in your health, contact us for a free Will while you are still able to understand and approve its contents.
- If you suspect that a loved one is no longer capable of managing their own affairs, do not wait for a crisis to arise—consult an attorney for guidance on initiating a curatorship application.
- Ensure that all legal documents are prepared and executed by a professional and in strict compliance with the prescribed formalities to avoid disputes or invalidity at a later stage.
Understanding the distinction between physical and mental incapacity is crucial for effective estate and financial planning. While the law provides practical mechanisms to accommodate physical limitations, mental incapacity remains an area where early legal intervention is essential.
Article by Aleida Kraamwinkel, Attorney & Conveyancer, LLB (UNISA)
For more information, kindly contact Aleida via mail at aleida@rgprok.com or 044 601 9900, www.rgprok.com
