Validity of powers of attorney

In January 2004 the South African Law Reform Commission submitted a report entitled, ‘Assisted decision-making: Adults with impaired decision-making capacity’ Discussion Paper 105 (Project 122) (January 2004), which recommended that legislation should be introduced to recognise the validity of enduring powers of attorney that remain in force despite the mental incapacity of the principal or grantor thereof. It seems that, 12 years later, absolutely nothing has been done to take the matter further.

In modern society we all tend to live longer than the generations before us and in so many instances the incidence of mild to more serious cognitive impairment in individuals has become extremely common. Many of my fellow citizens have come to me to ask whether the power of attorney conferred on a relative or trusted agent will continue if their loss of memory should increase, as is so often the case. Other countries such as the United Kingdom, Canada, the United States, New Zealand and Australia have all introduced appropriate legislation to recognise enduring powers of attorney. Surely this is a non-contentious matter which, with very little effort, could receive legislative endorsement.

May I suggest that our profession should take immediate steps to urge the authorities to dust off the Law Reform Commission Report and to submit the draft legislation as a Bill for comment and, subsequent, enactment?

Louis van Zyl, attorney, Cape Town

A major who is a minor

I feel like I must raise a concern and opinion to the proposed amendment or enactment of the age of majority of the young person from 18 to 21.

The current status in South Africa is that everyone above the age of 18 years is deemed a major and can be allowed to vote as per universal suffrage.

He or she can enter into a valid marriage without seeking any parental consent as in terms of Children’s Act 38 of 2005 or Marriage Act 25 of 1961.

I believe that if such person is deemed a major, he or she can also enter into a valid contracts in terms of the law of contract, and such person can either own a tavern, bar or bottle store.

I visualise the situation whereby an 18 year old will not be allowed to consume, sell or buy alcohol.

In certain circumstances an 18 year old person could be preparing for his or her marriage and need to go to a bar to organise alcohol for invited guests.

If someone is old enough to obtain a driver’s licence and drive a car, I can find no reason why he or she will still be declared a major who is a minor when it comes to the alcohol issue.

I feel like the law will be limiting some of his or her rights, which will be unfair and unconstitutional.

I will be pleased if this letter can be published to see opinions from fellow lawyers.

Andile Alphons Nondabula, attorney, Verulam

This article was first published in De Rebus in 2017 (Jan/Feb) DR 4.