Contributed by Vincent Shimutwikeni, Manager: Legal Support Services, RFS Fund Administrators

Just like a will, the Power of Attorney (POA) is a legal phenomenon rarely discussed, yet it is a crucial tool for safeguarding your interests. Legal experts advise individuals to make use of the provision of a Power of Attorney to prepare for situations in which they may not be able to act on their own behalf due to absence, illness, or incapacity.

A Power of Attorney is a legal document that allows someone you trust to make decisions or act on your behalf if you are unable or no longer wish to do so yourself. The authority granted can be temporary or permanent, depending on your needs.

As we journey through retirement, planning for the future extends beyond financial security. Ensuring that your personal, medical, and financial decisions are respected, even if you cannot communicate them yourself, is a crucial aspect of maintaining peace of mind. A Power of Attorney is one of the most important legal tools to achieve this. 

What Is a Power of Attorney?
In terms of our law, a person may not act on behalf of another unless authorised to do so. As such, a power of attorney is a formal instrument by which authority is conferred from the “principal” (the person giving the authority to act on their behalf) to an “agent” (the person acting on behalf of the principal). This can include managing finances, paying bills, handling property transactions, or making medical decisions if you are unable to do so.

For pensioners, the Power of Attorney can be particularly important. As we age, illness, reduced mobility, or cognitive decline can make managing daily affairs independently challenging. By appointing a trusted person through a Power of Attorney, you ensure that your wishes are followed, bills are paid on time, and your financial and medical matters are handled according to your preferences.

The powers which are conferred by a power of attorney can either be general or special. In terms of a general power of attorney, a principal would be able to authorise the agent to conduct their business or manage their affairs without reservation, or to perform a wide range of acts, as set out in the power of attorney. 

In terms of special power of attorney, a person would be authorised to perform a specific act, such as signing a sale agreement or opening a bank account. It is important to note that the authority of the agent is embodied in a power of attorney, whether it be a general or specific one. In other words, it is the formal document which determines the scope and extent of the agent’s authorisation. Thus, an agent’s authority is restricted to those powers which are conferred by the power of attorney, and incidental to the performance thereof.

Why Pensioners Should Consider a Power of Attorney
Consider the following scenario: Mrs. N., a 70-year-old pensioner in Windhoek, experiences a sudden medical condition that leaves her temporarily incapacitated. Without a Power of Attorney, her family struggles to access her financial accounts to cover medical bills or make decisions about her care. However, had Mrs. N. prepared a Power of Attorney in advance, her designated agent could have legally stepped in to pay necessary bills, manage her pension withdrawals, and make medical decisions aligned with her previously expressed wishes.

The relevance of a Power of Attorney extends beyond medical and financial concerns. It can also simplify transactions related to property, pensions, and investments. Importantly, it ensures that you maintain control over who represents you and under what conditions, preventing potential disputes or
misuse of your finances. 

Creating a Power of Attorney in Namibia
A power of attorney can be granted informally, and even verbally, as there are no general prescribed formalities with which it needs to comply. However, when a power of attorney is required for a specific purpose, certain formalities are prescribed.
An example of a formality required for a Power of Attorney is provided for in Section 85 of the Deeds Registries Act No. 14 of 2015, which provides that:

“(1) A power of attorney executed in Namibia purports to give authority 

1. ...;
   or
2. to perform an act which may be performed legally in the deeds registry, is attested by
   
   
   1. two witnesses above the age of 14 years old and who are competent to give
      evidence in Court;
      or
   2. a magistrate, justice of the peace, commissioner of oaths or notary public,
      duly described as such in the power of attorney.

(2) A person may not attest a power of attorney in terms of which the person is appointed as an agent or derives any benefit from it.

Drafting a Power of Attorney in Namibia is relatively straightforward. Still, in certain instances, such as the one indicated above, where formalities for Powers of Attorney are prescribed, they should be observed to ensure it is properly prepared and effective, and the following points are worth
considering:

1. Choose a Trusted Agent: This should be someone you trust implicitly, as they will have the authority to act on your behalf. Often, pensioners appoint a close family member or a trusted legal advisor
   
   
2. Define the Scope: Your POA can be general, covering all financial and administrative matters, or limited to specific tasks such as managing a pension fund, selling property, signing contracts,or handling investment accounts.
   
   
3. Lodging the POA: Once executed, certain types of Powers of Attorney should be lodged with the Deeds Office if property transactions are involved. For general purposes, keeping a copy with your bank, pension administrator, and attorney ensures it can be quickly accessed when needed.

It is also important to understand that a Power of Attorney does not have perpetual application, and it may lapse. The requirement that a principal must have contractual capacity at the time when authority is granted to the agent has the implication that should the status of the principal change
regarding the power to conclude juristic acts, the authority conferred upon the agent will lapse. Therefore, a power of attorney granted by your parent would terminate should your parent become incapable of managing their own affairs. In terms of our law, a curator would need to be appointed by
a court to administer the affairs of a person with diminished mental capacity.

Similarly, a power of attorney granted by a person during their lifetime will become null and void upon their death.

Important notice and disclaimer
This article summarises the understanding, observation and notes of the author and lays no claim on accuracy, correctness or completeness. RFS Namibia (Pty) Ltd does not accept any liability for the content of this contribution and no decision should be taken on the basis of the information contained herein before having confirmed the detail with the relevant party. Any views expressed herein are those of the author and not necessarily those of RFS.