ANCs, POAs, and the other acronyms of true love
Topics Contract Law | Family Law | Wills, Estates & Trusts
30 Jan 2023
Who needs an engagement ring when you have a Power of Attorney?
Whether it is an ANC, POA, CA, your LWT, or yet another string of letters you’ve never heard of, there is a lot of paperwork that goes into joining your life with someone else. Whether you are thinking marriage and all its available forms in South Africa, or if you would prefer to live together without getting the government involved, or even if you are already married and looking at the ultimate bond, we are here to help you find the right agreement.
No, not that one. The antenuptial contract.
Also called “prenups,” these agreements set out how to divide property and assets within a marriage, and afterwards, should you get divorced. According to the Supreme Court of Appeal, these agreements set out the “property system for spouses that is different from the normal transfer” of estates by marriage and inheritance. This “normal transfer” is called community of property and it joins two estates into one. Whatever was yours and mine is now ours. However, an antenuptial contract gives you two other options; out of community of property with accrual and out of community of property without accrual. “Out of community of property” keeps each estate separate, what’s yours is still yours and what’s mine is still mine. Both parties are able to legally enter into agreements on their own, without the consent of the other spouse. “Accrual” refers to assets acquired or accrued during the marriage. With accrual means the growth in the estates over the period of the marriage will be split 50/50 and without accrual means those assets will remain the property of whomever paid for them.
You can also identify assets before the conclusion of the marriage that will not form part of the accrual. For example, a house you purchased before the marriage may be excluded from any claims in future, if you get divorced.
They get a bad rap, and no one wants to think about divorce just before their wedding, but it is a way of ensuring that there are no nasty surprises should the future be less rosy than you had hoped.
The CA – Cohabitation Agreement
For those of you who want to keep marriage out of it, there is the trusty Cohabitation Agreement.
Living with your partner and sharing the responsibilities of your household without the bonds of marriage can be very appealing to many couples. Weddings can be expensive, and families can be intense, and it’s going to be common law after a few years anyway, right? Two out of three. There is no such thing as common law marriage in this country, regardless of how long you have been together under one roof. Although legislation has made major strides to give protection to these parties, it is not perfect yet. The closest you will get is a cohabitation agreement. These agreements set out who is responsible for what, now and in the future and their “mutual understanding of their respective rights, expectations, and obligations with respect to one another and to each item of real, personal, or combined property, whether earned or acquired by gift, bequest, devise, descent or otherwise, before, during, and after the cohabitation period.” The agreements are comprehensive and binding, but do not automatically offer the same protection that marriage does.
Power of Attorney – The ultimate sign of trust.
Broadly, a POA gives the agent (nominated person) the authority to act on behalf of the principal (person doing the nominating) in certain circumstances such as legal or financial matters.
There are two kinds of Power of Attorney, Special and General. A Special Power of Attorney gives the agent authority to perform a specific act, such as signing a particular agreement. A General Power of Attorney gives the agent authority to act in a general way, usually outlined in the document until the POA is revoked, or either party dies, or is declared incapable. The recognition of a POA is also at the discretion of a third party, meaning that a POA agreement can be questioned or even rejected by the institutions involved.
Critically, a POA is an expression of will by the principal, rather than a contract, and the Agent is trusted to act in accordance with the will of the principal. This is why a POA comes to an end if the principal is no longer considered capable of acting in their own right due to illness or even sequestration.
If it happens that the principal is incapacitated and needs someone to make decisions for them, one can apply for “curatorship or administration”. Administration is specific under the Mental Health Care Act, 17 of 2002 and allows for the management of a person’s affairs due to being severely disabled or profoundly mentally ill. Curatorships are much more involved than POAs. Since it is a question of one’s free will, they require a multi-stage application to the High Court and a great deal of supporting evidence from medical professionals. Curatorships are not granted lightly, and often only end on the death of the person under curatorship.
This brings us to our next set of acronyms.
LWT and AMD
Until death do us part, or I nominate you as my healthcare proxy.
Your Last Will and Testament and Advanced Medical Directive or Medical Power of Attorney.
While we can get married a couple of times, dying is a once-off affair. The paperwork around one’s final wishes should be entrusted to your lawyer and a copy left with your closest loved one, whom you trust to act according to what you want, no matter how hard it may be for them.
The LWT or Last Will and Testament is probably the most familiar of these, and most of us know that they set out who will benefit once we are gone. What some of us may not know is that we can plan for what must happen when we are almost gone, in an Advanced Directive or Living Will.
The possibility of being technically alive and breathing, but with no capacity to make your own decisions is terrifying for some, making it even more important to leave a record of what you would want in those circumstances. Even though South Africa does not recognise the legality of a living will, we do recognise the right to refuse treatment. It is important for your family and healthcare practitioners to have an understanding of what you want in terms of treatment options, whether you wish to be an organ donor or even whether or not you want to be put on life support.
Specifically, Advanced Medical Directives are also an opportunity to name your healthcare proxy, or assign a Medical Power of Attorney to the person who you can trust to act in your best interests, should the question of treatment or resuscitation require further decisions.
What you may not know, is that you have the right to choose not to be kept alive if you have no reasonable chance of recovery. Since it is usually impossible to ask someone what they want if they are already in such a condition, the Advanced Directive is the only opportunity you have to save your loved ones from the pain and financial strain of deciding whether to keep you on advanced life support. It may be hard, but there is a lot of love wrapped up in this paperwork. The enduring love of your family, spouse and of the life you share.
Do you need to find out more about any of these agreements? Call our advice line for help.
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Article sourced from Legal&Tax.
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Michael Visser is a legal advisor at Legal&Tax. He has a Bachelor of Commerce (B.Com.) Law and LLB from The University of Pretoria. Read more about Michael Visser