The validity of a power of attorney where the mandator lacks ‘compos mentis’ : notarial implications

Abstract

A mandate, also referred to as a Power of Attorney, which remains valid for as long as the principal is mentally capable, is useful in assisting the mandator in the administration of their assets and liabilities. A mandatary who abuses of the given powers, is liable to damages and interest, and contracts entered into may be rendered null and void. The aggrieved parties, apart from nullifying the contracts, may also sue the Notary for damages. As a professional, the Notary is liable under civil, criminal, disciplinary and fiscal legislation. Of notable importance to scenarios where the mandator lacks compos mentis is civil and disciplinary, as well as criminal. Notaries who are punished under civil, and/or criminal liability, are also answerable to the disciplinary punishments mentioned in the Notarial Profession and Notarial Archives Act.