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| POWER OF ATTORNEY |
A Power of Attorney is an instrument (a document in
writing) usually but not necessarily by way of a Deed, by which the principal
called “donor” appoints an agent called “donee” and confers authority on him to
perform certain specified acts or kinds of acts on his behalf. Put differently, it is a document in writing usually but
not always necessarily under seal, whereby a person in possession of an estate
in land authorizes another person (the donee), who is called his attorney to do
in the stead of the donor anything which the donor can lawfully do.
A Power of Attorney has
the following features:
(a)
It
is a document of delegation clearly spelling out the powers delegated;
(b)
It
may be under seal but must be in writing;
(c) It
may be issued for valuable consideration or coupled with interest or for a
fixed period of time;
(d)
It
may be revocable or irrevocable;
(e) The
donee and the donor must be persons in law with legal capacity to enter into a valid contract;
(f)
It
cannot be used to cure defect or lack of capacity on the part of the donee or the donor;
(g)
It
does not transfer to title to land, in other words, it is not a conveyance
instrument; but it can empower a done to convey an interest in land on behalf
of the donor;
(h)
It
mirrors an agency relationship;
(i)
The
donor can also do the acts specified in the Power of Attorney;
(j)
An
infant, a lunatic, a minor, a bankrupt and like persons cannot be a donee/or
donor of a Power of Attorney;
(k)
A
firm (that is to say a Business Name/Enterprise or Partnership) cannot be given a Power of
Attorney; but a limited liability company can be a donor or donee of a Power of
Attorney;
(l)
A
Power of Attorney requires a fixed rate of stamping in accordance with
statutes; and not as per the value of the transaction;
(m)
The fact that a Power of Attorney has been granted does not prevent the donor
of the power from exercising the powers donated;
(n)
Where
a Power of Attorney is executed outside the country, it should be attested by a
Notary Public – if not – the donee cannot rely on presumption of due execution;
(o)
A
Power of Attorney should be stamped within 40 days of execution and registered
within 60 days of execution;
(p)
A
Power of Attorney made irrevocable for a fixed period or for valuable consideration cannot be expressly or impliedly revoked or revoked by operation
of law;
(q)
Where
a Power of Attorney is made irrevocable for valuable consideration, the
irrevocability clause should be drafted to include a “receipt clause”;
(r)
Where
family land is concerned; the Power of Attorney must be made by the family
head, or else it is void;
(s)
Where the
authority conferred in the Power of Attorney on the donee empowers him to execute a deed; his appointment
must be by deed;
(t)
There
is presumption of due execution of a Power of Attorney if the Power of
Attorney is attested to by a Notary Public, a Magistrate or a Judge – Section 150 of the Evidence Act 2011;
(u)
Only
juristic persons capable of suing and being sued can be appointed a donee of a Power
of Attorney;
(v) A Power
of Attorney can be conferred on more than one person; however it is necessary
to spell out each person’s function to avoid conflict and confusion.
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