“Better safe than sorry….”  Reaching those stages of your life where simple tasks regarding your personal affairs become difficult may seem scary and overwhelming, however is important to ensure that you are properly prepared for these situations before they may arise.

In preparing yourself for your senior years, it is advisable that you follow a simple 3-step approach to ensure the securing of your personal affairs and have the following in place –

A General Power of Attorney, a Valid Will and a Living Will.

Firstly, A General Power of Attorney gives a trusted individual, who may be a professional such as an attorney or a family member, general powers to perform and carry out various legal acts on your behalf. The attorney or family member acts as your agent in terms of the General Power of Attorney.  Such a General Power of Attorney may be done in advance and need not be used immediately but is at least in place should an unfortunate circumstance arise where you need assistance with your personal affairs. It must be noted however, that banks have their own separate mandates that would need to be completed with the bank itself, to ensure that your appointed agent can assist you in respect of your banking.

Secondly, having a Valid Will in place is extremely important. This allows for you to be able to instruct what should happen with your assets upon your death.  It is wise to have a valid Will in place that you review regularly, bearing in mind that you require mental capacity to give instructions for a Will to be drawn.  A valid Will ensures that those who you intend to inherit from your estate will inherit.

Your Will must be drafted in terms of the Wills Act and comply with all the formalities which include the following:

1. The Will is in writing;
2. The Will must be signed at the end thereof by the Testator or Testatrix;
3. The signature by the Testator or Testatrix must be made or acknowledged in the presence of two or more competent witnesses present at the same time;
4. The witnesses must attest and sign the Will in the presence of the Testator or Testatrix and each other;
5. If the Will consists of more than one page, each page other than the last page, must be signed anywhere on the page by the Testator or Testatrix; and
6. If the Will is signed by the Testator or Testatrix by the making of a mark, a Commissioner of Oaths must certify that he has satisfied himself as to the identity of the Testator or Testatrix and that the Will so signed is that of the Testator or Testatrix.

If a Will is not signed in compliance with the provisions of the Wills Act, the Master of the High Court has no discretion to accept the document as a valid Will and is obliged to declare the Will to be invalid. The Wills Act does make provision for an interested party to approach the High Court for an order to validate an invalid Will and the High Court can order the invalid will to be valid, if the High Court is satisfied that the Testator or Testatrix intended the document to be his or her Will or an amendment to his or her Will.  An application to court is however an expensive process and it slows down the administration of an estate.

Lastly, it is a good idea to consider whether you wish to have a living Will. This is a document that explains to medical practitioners what your personal wishes are regarding your medical care and treatment should you be mentally and physically incapacitated and unable to communicate your decisions regarding life-sustaining treatment. The living Will is an expression of your right to die with dignity and provides guidance to your family members. It is important to bear in mind that living Wills are not legally recognized in South Africa, and doctors are not obliged to comply with a living Will.

J Leslie Smith & Company are able to offer a service in the above fields by virtue of many years experience in the above fields and will be happy to assist you with any of your queries. You may contact Margaret McCullough or Mandi Kauffmann on 033-8459700 to make arrangements for assistance. JLS – “More than just Suits”.