Power of Attorney is an instrument, which may be under seal authorizing or appointing a person to legally act and administer commercial and non-commercial affairs on behalf of an individual or company. The parties in a Power of Attorney are referred to as Donor/Principal (the party who donates power to another) and a Donee or Agent (the party whose power is donated to).
Power of Attorney (POA) can be granted by individuals and Corporations to an agent to perform functions, such as instituting an action in court, managing property, signing documents or receiving rents etc. it is also important to note that the power conferred on a Donee by a Donor can be either general or specific.
The words contained in a POA must be strictly construed for the Donor to know exactly the power he wants to confer on another and what limits the power should be. A POA must be drafted to reflect the true and proper intention of the Donor.
Revocation of a Power of Attorney
A Power of Attorney can be easily revoked expressly, impliedly or by operations of law.
An Express Revocation is usually communicated in writing, that the powers have been revoked. The form of an express revocation will depend on how the Power of Attorney was created. If it was created by a deed, then the revocation must also be done by deed. If it was created orally, then it will be revoked orally. The express revocation leaves no party in doubt of the action.
Implied Revocation will arise from the actions of the Donor/Agent. Where the donor gives a Power of Attorney to a donee and then still goes ahead to deal with the subject matter contained in the Power of Attorney in a way that makes it impossible for the Donee to exercise his authority under the POA. So long as the Donee has not exercised the power conferred, the Donor can still exercise the same power.
The fact of the donor giving a Power of Attorney does not extinguish his right to do the same act the agent can do or do with his property what he wishes. For instance, where a landowner gives a Power of Attorney to an agent to sell their land and then goes ahead to sell the land himself before the agent does so, it can be implied that the Power of Attorney has been revoked.
Revocation by Operation of Law, the law provides certain circumstances that automatically revoke a Power of Attorney. If the donor/principal dies, becomes insane, bankrupt, or suffers any other legal incapacity while the Power of Attorney is still valid, then those situations will revoke the Power of Attorney. However, the exceptions to this general rule is where the Power of Attorney is coupled with an interest, it is irrevocable until the interest is exhausted.
Power of Attorney can also be irrevocable where it is given for consideration. It cannot be affected by bankruptcy, insanity, death or lunacy until the consideration is extinguished. If it is granted for a defined period, it remains irrevocable until the period expires.
Types of Power of Attorney
There are two (2) types of POA which are determined by the amount of power granted by the principal to an agent. It is also possible to appoint more than one person as a Donee. Under such joint power of attorney, decisions must be made by consensus or agreement. The Donor can also be specific as to when the power of attorney provisions should take effect and when the power of attorney may expire. The Donor can be a spouse, adult, child, relative or trusted friend of the Donor/principal, as long as the Donee acts in good faith on behalf of the principal at all times.
- General Power of Attorney when created confers legal authority on another to take unlimited decisions of all activities of the Donor.
- Specific Power of Attorney: this type of POA grants legal authority to an agent for specific matters. For example, to sell a property handle bank accounts or sign documents etc.
In conclusion, the power of attorney is granted for the purpose of ensuring that when the Donor is absent and unable to make decisions, his interest will continue to be protected by the Donee/ Agent. A power of Attorney should be attested by a judge, notary public or magistrate even though such attestation is not mandatory and will not render the instrument invalid.
However, if the power of attorney is to be used outside Nigeria, it is advisable for the document/instrument to be attested to by the Notary Public.
BY: RESOLUTION LAW FIRM