Teddy Chipolya
In this research, a critical examination is
undertaken to elucidate ways in which property can be managed whether selling
it, convey, transferring and everything incidental without changing the title
to the property, by a person other than the owner to act in his name.
Thereafter, enlist the requirements for executing this instrument, the types aswell as ways in which this instrument can be revoked.
INTRODUCTION
Power of Attorney, or POA, is a legal
document giving an attorney-in-charge or legal agent the authority to act on
behalf of the principal. It was also defined in the case of Mr. Mubariz Hussein
vs. Ireen that a power of attorney is an instrument where one is set in the
steed of another to act for him.[1]
The parties in this instrument includes owner, who shall be called the
principal and the Attorney who is an agent appointed in the instrument to
manage the property.
The attorney possesses broad or limited authority to act
on behalf of the principal and this authority should be in line with the the
owners intention. However certain circumstances powers can be implied for the
purpose of executing an intended act for the principle as in the case of Attwood
v. Mullings 7 B.[2]
It was stated, A power to borrow cannot be presumed, for it was not
incidental to the duties which the a gent undertook; and in this case the money
was not in fact borrowed for the purpose of those duties.
THE GENERAL NATURE OF POWER OF ATTORNEY
The nature of the attorney power is that
one must work within the scope of authority granted to him or her and
everything ancillary to performing the specific task given and within the
stated period, Failure to do the same, the agent will be liable for any loss incurred
by the principle or third parties. However, the attorney will not be liable of
any loss incurred by the principle or the third party if he did not know of the
revocation
The case of Timblo Irmaos Ltd., Margo v.
Jorge Anibal Matos Sequeira And Another[3]
was adjudicated by the Supreme Court of India on December 16, 1976. This
landmark judgment delves into the intricacies of contractual obligations and
the scope of authority vested in agents through a power of attorney. The
dispute arose between Timblo Irmaos Ltd. (the plaintiff-appellant) and Jorge
Anibal Matos Sequeira along with his wife (the defendants-respondents).
The
crux of the case revolved around the binding nature of contractual agreements
entered into by the Sequeiras through their attorneys and whether implied
authority under a power of attorney could extend to executing such agreements.
The trial court held the second contract was not valid for the attorney lacked
authority however, the Court of Appeal upheld the decision additionally stated
the second contract was binding as he had implied permission.
In the context of land, a power of attorney
created for the sale of property, the attorney is obliged to comply with the
required procedure to validate the sale of that property by getting
state consent to sell, deducing title, to prepare the contract of sale and
reduce it into writing in accordance with section 4 of the statute of frauds
(1677). Where there is encumbrance on the land the attorney may discharge them.
- REMUNERATION the attorney is entitled to
payment for the service, if there is no express provision for the remuneration,
he may claim payment under a quantum meruit basis if the agreement stated
thereof. However, for the avoidance of doubt it is advisable to include a clause in the power of attorney stating whether the attorney will be renumerated or
not[4]
CASE LAW IN NUANCING THE NATURE OF
AUTHORITY HELD BY AN ATTORNEY
In Timblo Irmaos Ltd., Margo v. Jorge
Anibal Matos Sequeira And Another, Supreme Court referenced several pivotal
cases to elucidate the interpretation of powers of attorney as earlier stated:
Powis and Bryant, Limited v. La Banque De
Peuple (1893): This case underscored the principle that powers of attorney are
to be construed strictly, ensuring that any act beyond the conferred authority
requires explicit permission.
Jonmenjoy Coondoo v. George Alder Watson[5]
Highlighted that specific powers enumerated in a power of attorney cannot be
extended to unrelated acts, such as lending or pledging, without clear
authorization.
A power of attorney gave to the holders
authority "for the purposes aforesaid to sign for me and in my name and on
my behalf any and every contract or agreement, acceptance, or other
document," the purposes aforesaid being "from time to time to
negotiate, make sale, dispose of, assign, and transfer" Government
promissory notes, and "to contract for, purchase, and accept the
transfer" of the same :-
Held, that upon the true construction of
this power the holders were authorised to sell or purchase such notes, but not
to pledge
Adaikappa Chettiar v. Thomas Cook &
Son (Bankers) Ltd[6].
Applied the ejusdem generis rule, establishing that general words following
specific enumerations should not be interpreted to expand beyond the intended
scope.
These precedents collectively informed the
Court's stance on the necessity of both explicit and implied permissions within
a power of attorney, ensuring actions taken by an agent align with the
principal's intent and the document's purpose
THE REQUISITE ELEMENTS TO CREATE POWER OF
ATTORNEY.
The general rule is that there must be
intention, to execute this document, this element is critical because the
principal is giving property to another without his consent vitiate it and it's
void ab initio as seen in the case of Chishala karabashi v Mwale[7]
the estranged wife to the respondent represented to act on behalf of the
husband who was a England resident through a power of attorney however it
failed for consent.
The other element is mental capacity must
be of legal age and not a child (the definition of a child in article 266 of
the constitution of Zambia) if the power of attorney is made by person below
the legal age it must be for their benefit in the case of G(A) Vs. G(T)
(1970).
FORMALITIES FOR CREATING POA
They are usually written documents,
although some jurisdictions allow oral power or attorney agreements. Many
jurisdictions impose special requirements on their form or substance.[8]
In the case of Attorney general hussin v IREEN[9],
the power of attorney is defined as an "instrument," that transfer
authority. There are no provisions that requires this instrument to be
registered
However, the power of attorney deeds can be
registered in accordance with section 74 of the Lands and Deeds Registry Act[10]
provides the miscellaneous registry this quite common in practice as there are
no mandatory requirements for registering such document neither by the court or
legislation.
Even though the power of Attorney is an
instrument executed as a deed however it cannot be registered in accordance
with section 4 the Lands and Deeds Registry Act (reasoning section 4 of the act
is mandatory requirement on the party to register deeds that purpots to
transfer property or any interest in land. However, in the power of attorney
merely gives authority to deal with property and the agents acts in the name of
the principle therefore no transfer of property to different name).
- ATTESTATION The principle needs to sign
or can instruct another person to sign it in his presence the deed can also be signed in the presence of two witnesses who must
also sign to duly notified. Where another person signs on behalf of the
principle it can be in circumstances where he/she cannot sign himself as
provided under section 6 of the Wills Act.
CATEGORIES OF POWER OF ATTORNEY
There generally two categories of power of
attorney which includes
1. The
ordinary power of attorney
There are various situations where a
person may need a power of attorney to appoint someone to act on their behalf.
Here are some common examples:
Managing Finances: If an individual is
unable to handle their financial affairs due to reasons such as illness,
disability, or travel, someone they granted a power of attorney to could do so
for them. The appointed agent can then manage bank accounts, pay bills, and
handle financial transactions
Real Estate Transactions: Individuals who
are buying or selling property but cannot be present for the closing or signing
of documents may use a power of attorney to authorize someone else to represent
them in the real estate transaction.
Types of Power of Attorney
Typically, a power of attorney only
remains effective as long as the principal is alive and competent to make
decisions. Principals may, however, grant durable powers of attorney that
persist after they are no longer able to make their own decisions. There are
many types of powers of attorney that serve a variety of needs for the people
who create them.[11]
(I) General Power of Attorney
A general power of attorney typically
grants broad decision-making authority to an appointed agent, allowing them to
act on behalf of the principal in various matters. This type of power of
attorney is comprehensive, covering financial, legal, and personal affairs.
The agent, also known as the
attorney-in-fact, has the authority to make decisions such as managing
finances, signing documents, and handling business transactions. It is a
valuable tool for situations where the principal needs assistance with various
aspects of their affairs, especially when they are unable to handle them
personally.
(ii)
Limited Power of Attorney
A limited power of attorney, in contrast
to a general one, grants the agent specific and restricted powers for a defined
purpose or period. This type allows the principal to tailor the authority
granted to the agent based on particular needs.
For example, a limited power of attorney
might be created to authorize someone to handle a real estate transaction, sign
documents on behalf of the principal, or make decisions related to a specific
event.
Once the specified task or time frame is
completed, the limited power of attorney becomes void, providing a more focused
and controlled approach to the delegation of decision-making authority.
(iii) Durable Power of Attorney
A durable power of attorney is a specific
type of POA that remains effective even if the principal becomes mentally or
physically incapacitated. Unlike a general power of attorney, which may
terminate in such situations, a durable power of attorney persists, ensuring
continuity of decision-making.
This type is particularly useful in
long-term planning, allowing the appointed agent to continue managing the
principal's affairs during periods of incapacity. It is crucial to explicitly
state the durability of the power of attorney document to ensure that the
agent's authority endures despite the principal's incapacity.
(IV) Springing Power of Attorney
A springing power of attorney is a POA
that becomes effective only under certain conditions, typically when the
principal becomes incapacitated or unable to make decisions.
Unlike a general power of attorney, which
is effective upon signing, a springing power of attorney "springs"
into action when a triggering event occurs. This triggering event is specified
in the document and is often tied to the mental or physical incapacity of the
principal.
The intention is to ensure that the
agent's authority is activated only when needed, allowing the principal to
maintain control over their affairs during periods of competence. Springing
powers of attorney are commonly used in situations where individuals want to
plan for potential future incapacity while retaining autonomy over their
affairs until such a situation arises.
(V)Financial Power of Attorney
A financial power of attorney is a
specialized type of POA that focuses specifically on granting authority related
to financial matters. This can include managing bank accounts, handling
investments, paying bills, and conducting other financial transactions on
behalf of the principal.
Individuals may choose to create a
financial power of attorney to ensure that their financial affairs are
appropriately managed, especially in situations where they may be unavailable
or unable to handle these matters personally.
(Vi) Medical Power of Attorney
A medical power of attorney, also known as
a healthcare power of attorney or healthcare proxy, empowers an appointed agent
to make medical decisions on behalf of the principal in the event they are
unable to do so.
This type of power of attorney is crucial
for situations where the principal faces a medical crisis or is otherwise
unable to communicate their healthcare preferences. The agent can make
decisions about medical treatments, surgeries, and other healthcare-related
matters based on the principal's expressed wishes or, if unknown, in their best
interests.
DUTIES OF ATTORNEY
Granting POA to the right person is
essentially important for the grantor as it gives the agent authority to take
major decisions on his behalf. The grantor can give unlimited power to his
agent or restrict it to certain privileges depending on his mental and physical
well-being. Hence, when a person is designated as an agent, he is appointed
with several responsibilities and has to fulfil many duties on the behalf of
the grantor.[12]
1) Dealing with Real Estate Matters
Depending on the terms stated in the POA,
a designated attorney may have to manage the grantor’s real estate affairs and
take an active role in its succession planning. To ensure a grantor’s continued
involvement in the real estate matters, he and the agent have to sign an
Enduring Power of Attorney (EPA) in front of a lawyer or notary public. Your
lawyer in turn certifies the attorney to look into the matter. Once certified,
an attorney needs to manage with the grantor’s real estate matters and investments.
It is highly recommended to consult an experienced lawyer before signing an EPA
to ensure its validity as well as understand the legalities entailed with
estate planning and administration better.
2) Being Loyal to the Donor
The attorney is responsible for carrying
the duties and responsibilities assigned to him honestly and in accordance with
the principal’s wishes. He should not conduct any activity or transaction that
is restricted according to the document of POA . He also needs to notify the
principal about the mandates that are being executed. Keep a written record of
the activities undertaken by you on the donor’s behalf. Also keep in mind that
the principal retains the final authority regarding the decisions taken by you.
3) Making Financial Transactions
Another crucial responsibility of an
attorney is to make financial decision on behalf of the donor. There are
certain situations where the attorney has to use the agent’s finances for the
benefit of others. For instance, the attorney may need to utilise the money of
the agent after his death to fulfil the legal obligation of financially
supporting his minor children.
The attorney may can also make gifts or
loans on his agent’s behalf which may also include supporting the agent’s
family members and friends. Your lawyer can help you understand the duties
entrusted with a POA better.
4) Separation of Resources
As an attorney you are obligated to make
sure your resources and capital remains separated from the grantor’s. You may
receive a designated sum of money from the grantor as mentioned in the EPA but
it’s important to make sure you do not utilise grantor’s resources for personal
requirements. Failure to comply with this rule may lead to heavy litigation for
you.
REVOCATION OF POWERS OF ATTORNEY
1. By express revocation; This means that
the donor (the person granting the power of attorney) explicitly and directly
revokes the power of attorney. This can be done through a formal document or
notification.
2. By implied revocation; This occurs when
the donor's actions or behavior imply that they no longer intend for the power
of attorney to be in effect. For example, if the donor does something that is
inconsistent with the continued operation of the power, it may be considered an
implied revocation.
e.g. when the donor does anything which is
inconsistent with the continued operation of the power.
3. By the donor's death or the donor's
bankruptcy; When the donor dies or becomes bankrupt, the power of attorney is
typically revoked. This is because the donor's death or bankruptcy may render
the power of attorney unnecessary or invalid.
4. By the donor's mental incapacity unless
the power is enduring; If the donor becomes mentally incapacitated, the power
of attorney is usually revoked. However, if the power of attorney is an
"enduring" one, it may continue to be valid even if the donor becomes
mentally incapacitated. An enduring power of attorney is a special type of
power that is designed to survive the donor's mental incapacity.
NOTE:
An enduring power of attorney is one that
survives the mental incapacity or death of the donor. A clause is inserted in
the power of attorney in this regard.
5. By the winding up or dissolution of the
corporate donor; If the donor is a corporation and it is wound up or dissolved,
the power of attorney is typically revoked. This is because the corporation's
existence is terminated, and it can no longer grant or maintain a power of
attorney.
6. By the attorney's death, if he is the
sole attorney or one appointed to act jointly with others. i.e. there are 2
attorneys, and they are required to "act jointly" - the death of one
terminates the powers of the other. If the attorney (the person appointed to
act on behalf of the donor) dies, the power of attorney is usually revoked.
This is especially true if the attorney is the sole attorney or if they are
required to act jointly with others. In the latter case, the death of one
attorney may terminate the powers of the other attorney(s).
7. By the attorney's bankruptcy if he is
the sole attorney or has been appointed to act jointly with others; If the
attorney becomes bankrupt, the power of attorney may be revoked, especially if
they are the sole attorney or if they are required to act jointly with others.
8. By the attorney's mental incapacity
(whether sole attorney or one who acts jointly with others). If the attorney becomes mentally
incapacitated, the power of attorney is usually revoked, regardless of whether
they are the sole attorney or acting jointly with others.
9. By the winding up or dissolution of the
corporate attorney; If the attorney is a corporation and it is wound up or
dissolved, the power of attorney is typically revoked. This is because the
corporation's existence is terminated, and it can no longer act as an attorney.
10. By efflusion of time - time appointed
for performance of a task lapses. If the power of attorney is granted for a
specific period or task, it may be revoked when that period expires or the task
is completed.
11. By fulfillment of the purpose for
which the attorney was appointed;
Here's a detailed explanation of each
element listed under "Revocation of Powers of Attorney": If the power
of attorney is granted for a specific purpose, it may be revoked when that
purpose is fulfilled.in the case of Frith Vs. Frith (1906),[13]
a manager sought to claim power of attorney which would authorise him to enter
into possession of and manage estate in Turks and Caicos island, and receive
rent and profits to pay debt due to the owners. It was irrevocable because he
had separately undertaken at their request to guarantee the payment of a debt
secured by mortgage over the estate.He argued that if he was called upon as
surety, the power would enable him to recover any amount paid. Held, his appeal
failed because the authority when conferred was not expressed or intended to be
used for the purpose of subserving the managers interest as guarantor and had
no connection with it. Lord Atkin stated
"To allow an agent to exercise his
authority after it has been revoked would amount to the specific enforcement of
the relationship which is by it's nature not specifically enforceable."
[1] MURABAZI HUSSAIN V IREEN LEMBA (2008) ZR SCZ
[2] Attwood v. Mullings 7 B. & C. 278.
[3] 1977 AIR 734, 1977 SCR (2) 451, AIR 1977 SUPREME COURT 734, 1977 3
SCC 474, 1977 2 SCR 451.
[4] https://www.scribd.com/document/630239606/power-of-Attorney
[5] Jonmenjoy Coondoo v. George Alder Watson BS651345
[6] Adaikappa Chettiar v. Thomas
Cook & Son (Bankers) Ltd. AIR 1933 PC 78
[7] Chishala Karabasis Nivel & Another v Mwale (Appeal 161 of 2015)
[2018] ZMSC 321 (25 September 2018)
[8] https://www.law.cornell.edu/wex/power_of_attorney
[9] Ibidi
[10] Lands and Deeds Registry Act Chapter 84 of the Laws of Zambia
[11] https://dentonlegacy.com/practice-areas/power-of-attorney/
[12] "What Are The Duties Of A Power Of Attorney? - Edmonton Law
Firms"
https://prowsebarrette.com/what-are-the-duties-of-a-power-of-attorney/#:~:text=A%20power
[13] Frith v Frith (1906) UKPC 18
INTRODUCTION
Power of Attorney, or POA, is a legal document giving an attorney-in-charge or legal agent the authority to act on behalf of the principal. It was also defined in the case of Mr. Mubariz Hussein vs. Ireen that a power of attorney is an instrument where one is set in the steed of another to act for him.[1] The parties in this instrument includes owner, who shall be called the principal and the Attorney who is an agent appointed in the instrument to manage the property.
The attorney possesses broad or limited authority to act on behalf of the principal and this authority should be in line with the the owners intention. However certain circumstances powers can be implied for the purpose of executing an intended act for the principle as in the case of Attwood v. Mullings 7 B.[2] It was stated, A power to borrow cannot be presumed, for it was not incidental to the duties which the a gent undertook; and in this case the money was not in fact borrowed for the purpose of those duties.
THE GENERAL NATURE OF POWER OF ATTORNEY
The nature of the attorney power is that one must work within the scope of authority granted to him or her and everything ancillary to performing the specific task given and within the stated period, Failure to do the same, the agent will be liable for any loss incurred by the principle or third parties. However, the attorney will not be liable of any loss incurred by the principle or the third party if he did not know of the revocation
The case of Timblo Irmaos Ltd., Margo v. Jorge Anibal Matos Sequeira And Another[3] was adjudicated by the Supreme Court of India on December 16, 1976. This landmark judgment delves into the intricacies of contractual obligations and the scope of authority vested in agents through a power of attorney. The dispute arose between Timblo Irmaos Ltd. (the plaintiff-appellant) and Jorge Anibal Matos Sequeira along with his wife (the defendants-respondents).
The crux of the case revolved around the binding nature of contractual agreements entered into by the Sequeiras through their attorneys and whether implied authority under a power of attorney could extend to executing such agreements. The trial court held the second contract was not valid for the attorney lacked authority however, the Court of Appeal upheld the decision additionally stated the second contract was binding as he had implied permission.
In the context of land, a power of attorney created for the sale of property, the attorney is obliged to comply with the required procedure to validate the sale of that property by getting state consent to sell, deducing title, to prepare the contract of sale and reduce it into writing in accordance with section 4 of the statute of frauds (1677). Where there is encumbrance on the land the attorney may discharge them.
- REMUNERATION
CASE LAW IN NUANCING THE NATURE OF AUTHORITY HELD BY AN ATTORNEY
In Timblo Irmaos Ltd., Margo v. Jorge Anibal Matos Sequeira And Another, Supreme Court referenced several pivotal cases to elucidate the interpretation of powers of attorney as earlier stated:
Powis and Bryant, Limited v. La Banque De Peuple (1893): This case underscored the principle that powers of attorney are to be construed strictly, ensuring that any act beyond the conferred authority requires explicit permission.
Jonmenjoy Coondoo v. George Alder Watson[5] Highlighted that specific powers enumerated in a power of attorney cannot be extended to unrelated acts, such as lending or pledging, without clear authorization.
A power of attorney gave to the holders authority "for the purposes aforesaid to sign for me and in my name and on my behalf any and every contract or agreement, acceptance, or other document," the purposes aforesaid being "from time to time to negotiate, make sale, dispose of, assign, and transfer" Government promissory notes, and "to contract for, purchase, and accept the transfer" of the same :-
Held, that upon the true construction of this power the holders were authorised to sell or purchase such notes, but not to pledge
Adaikappa Chettiar v. Thomas Cook & Son (Bankers) Ltd[6]. Applied the ejusdem generis rule, establishing that general words following specific enumerations should not be interpreted to expand beyond the intended scope.
These precedents collectively informed the Court's stance on the necessity of both explicit and implied permissions within a power of attorney, ensuring actions taken by an agent align with the principal's intent and the document's purpose
THE REQUISITE ELEMENTS TO CREATE POWER OF ATTORNEY.
The general rule is that there must be intention, to execute this document, this element is critical because the principal is giving property to another without his consent vitiate it and it's void ab initio as seen in the case of Chishala karabashi v Mwale[7] the estranged wife to the respondent represented to act on behalf of the husband who was a England resident through a power of attorney however it failed for consent.
The other element is mental capacity must be of legal age and not a child (the definition of a child in article 266 of the constitution of Zambia) if the power of attorney is made by person below the legal age it must be for their benefit in the case of G(A) Vs. G(T) (1970).
FORMALITIES FOR CREATING POA
They are usually written documents, although some jurisdictions allow oral power or attorney agreements. Many jurisdictions impose special requirements on their form or substance.[8] In the case of Attorney general hussin v IREEN[9], the power of attorney is defined as an "instrument," that transfer authority. There are no provisions that requires this instrument to be registered
However, the power of attorney deeds can be registered in accordance with section 74 of the Lands and Deeds Registry Act[10] provides the miscellaneous registry this quite common in practice as there are no mandatory requirements for registering such document neither by the court or legislation.
Even though the power of Attorney is an instrument executed as a deed however it cannot be registered in accordance with section 4 the Lands and Deeds Registry Act (reasoning section 4 of the act is mandatory requirement on the party to register deeds that purpots to transfer property or any interest in land. However, in the power of attorney merely gives authority to deal with property and the agents acts in the name of the principle therefore no transfer of property to different name).
- ATTESTATION
CATEGORIES OF POWER OF ATTORNEY
There generally two categories of power of attorney which includes
1. The ordinary power of attorney
There are various situations where a person may need a power of attorney to appoint someone to act on their behalf. Here are some common examples:
Managing Finances: If an individual is unable to handle their financial affairs due to reasons such as illness, disability, or travel, someone they granted a power of attorney to could do so for them. The appointed agent can then manage bank accounts, pay bills, and handle financial transactions
Real Estate Transactions: Individuals who are buying or selling property but cannot be present for the closing or signing of documents may use a power of attorney to authorize someone else to represent them in the real estate transaction.
Types of Power of Attorney
Typically, a power of attorney only remains effective as long as the principal is alive and competent to make decisions. Principals may, however, grant durable powers of attorney that persist after they are no longer able to make their own decisions. There are many types of powers of attorney that serve a variety of needs for the people who create them.[11]
(I) General Power of Attorney
A general power of attorney typically grants broad decision-making authority to an appointed agent, allowing them to act on behalf of the principal in various matters. This type of power of attorney is comprehensive, covering financial, legal, and personal affairs.
The agent, also known as the attorney-in-fact, has the authority to make decisions such as managing finances, signing documents, and handling business transactions. It is a valuable tool for situations where the principal needs assistance with various aspects of their affairs, especially when they are unable to handle them personally.
(ii) Limited Power of Attorney
A limited power of attorney, in contrast to a general one, grants the agent specific and restricted powers for a defined purpose or period. This type allows the principal to tailor the authority granted to the agent based on particular needs.
For example, a limited power of attorney might be created to authorize someone to handle a real estate transaction, sign documents on behalf of the principal, or make decisions related to a specific event.
Once the specified task or time frame is completed, the limited power of attorney becomes void, providing a more focused and controlled approach to the delegation of decision-making authority.
(iii) Durable Power of Attorney
A durable power of attorney is a specific type of POA that remains effective even if the principal becomes mentally or physically incapacitated. Unlike a general power of attorney, which may terminate in such situations, a durable power of attorney persists, ensuring continuity of decision-making.
This type is particularly useful in long-term planning, allowing the appointed agent to continue managing the principal's affairs during periods of incapacity. It is crucial to explicitly state the durability of the power of attorney document to ensure that the agent's authority endures despite the principal's incapacity.
(IV) Springing Power of Attorney
A springing power of attorney is a POA that becomes effective only under certain conditions, typically when the principal becomes incapacitated or unable to make decisions.
Unlike a general power of attorney, which is effective upon signing, a springing power of attorney "springs" into action when a triggering event occurs. This triggering event is specified in the document and is often tied to the mental or physical incapacity of the principal.
The intention is to ensure that the agent's authority is activated only when needed, allowing the principal to maintain control over their affairs during periods of competence. Springing powers of attorney are commonly used in situations where individuals want to plan for potential future incapacity while retaining autonomy over their affairs until such a situation arises.
(V)Financial Power of Attorney
A financial power of attorney is a specialized type of POA that focuses specifically on granting authority related to financial matters. This can include managing bank accounts, handling investments, paying bills, and conducting other financial transactions on behalf of the principal.
Individuals may choose to create a financial power of attorney to ensure that their financial affairs are appropriately managed, especially in situations where they may be unavailable or unable to handle these matters personally.
(Vi) Medical Power of Attorney
A medical power of attorney, also known as a healthcare power of attorney or healthcare proxy, empowers an appointed agent to make medical decisions on behalf of the principal in the event they are unable to do so.
This type of power of attorney is crucial for situations where the principal faces a medical crisis or is otherwise unable to communicate their healthcare preferences. The agent can make decisions about medical treatments, surgeries, and other healthcare-related matters based on the principal's expressed wishes or, if unknown, in their best interests.
DUTIES OF ATTORNEY
Granting POA to the right person is essentially important for the grantor as it gives the agent authority to take major decisions on his behalf. The grantor can give unlimited power to his agent or restrict it to certain privileges depending on his mental and physical well-being. Hence, when a person is designated as an agent, he is appointed with several responsibilities and has to fulfil many duties on the behalf of the grantor.[12]
1) Dealing with Real Estate Matters
Depending on the terms stated in the POA, a designated attorney may have to manage the grantor’s real estate affairs and take an active role in its succession planning. To ensure a grantor’s continued involvement in the real estate matters, he and the agent have to sign an Enduring Power of Attorney (EPA) in front of a lawyer or notary public. Your lawyer in turn certifies the attorney to look into the matter. Once certified, an attorney needs to manage with the grantor’s real estate matters and investments. It is highly recommended to consult an experienced lawyer before signing an EPA to ensure its validity as well as understand the legalities entailed with estate planning and administration better.
2) Being Loyal to the Donor
The attorney is responsible for carrying the duties and responsibilities assigned to him honestly and in accordance with the principal’s wishes. He should not conduct any activity or transaction that is restricted according to the document of POA . He also needs to notify the principal about the mandates that are being executed. Keep a written record of the activities undertaken by you on the donor’s behalf. Also keep in mind that the principal retains the final authority regarding the decisions taken by you.
3) Making Financial Transactions
Another crucial responsibility of an attorney is to make financial decision on behalf of the donor. There are certain situations where the attorney has to use the agent’s finances for the benefit of others. For instance, the attorney may need to utilise the money of the agent after his death to fulfil the legal obligation of financially supporting his minor children.
The attorney may can also make gifts or loans on his agent’s behalf which may also include supporting the agent’s family members and friends. Your lawyer can help you understand the duties entrusted with a POA better.
4) Separation of Resources
As an attorney you are obligated to make sure your resources and capital remains separated from the grantor’s. You may receive a designated sum of money from the grantor as mentioned in the EPA but it’s important to make sure you do not utilise grantor’s resources for personal requirements. Failure to comply with this rule may lead to heavy litigation for you.
REVOCATION OF POWERS OF ATTORNEY
1. By express revocation; This means that the donor (the person granting the power of attorney) explicitly and directly revokes the power of attorney. This can be done through a formal document or notification.
2. By implied revocation; This occurs when the donor's actions or behavior imply that they no longer intend for the power of attorney to be in effect. For example, if the donor does something that is inconsistent with the continued operation of the power, it may be considered an implied revocation.
e.g. when the donor does anything which is inconsistent with the continued operation of the power.
3. By the donor's death or the donor's bankruptcy; When the donor dies or becomes bankrupt, the power of attorney is typically revoked. This is because the donor's death or bankruptcy may render the power of attorney unnecessary or invalid.
4. By the donor's mental incapacity unless the power is enduring; If the donor becomes mentally incapacitated, the power of attorney is usually revoked. However, if the power of attorney is an "enduring" one, it may continue to be valid even if the donor becomes mentally incapacitated. An enduring power of attorney is a special type of power that is designed to survive the donor's mental incapacity.
NOTE:
An enduring power of attorney is one that survives the mental incapacity or death of the donor. A clause is inserted in the power of attorney in this regard.
5. By the winding up or dissolution of the corporate donor; If the donor is a corporation and it is wound up or dissolved, the power of attorney is typically revoked. This is because the corporation's existence is terminated, and it can no longer grant or maintain a power of attorney.
6. By the attorney's death, if he is the sole attorney or one appointed to act jointly with others. i.e. there are 2 attorneys, and they are required to "act jointly" - the death of one terminates the powers of the other. If the attorney (the person appointed to act on behalf of the donor) dies, the power of attorney is usually revoked. This is especially true if the attorney is the sole attorney or if they are required to act jointly with others. In the latter case, the death of one attorney may terminate the powers of the other attorney(s).
7. By the attorney's bankruptcy if he is the sole attorney or has been appointed to act jointly with others; If the attorney becomes bankrupt, the power of attorney may be revoked, especially if they are the sole attorney or if they are required to act jointly with others.
8. By the attorney's mental incapacity (whether sole attorney or one who acts jointly with others). If the attorney becomes mentally incapacitated, the power of attorney is usually revoked, regardless of whether they are the sole attorney or acting jointly with others.
9. By the winding up or dissolution of the corporate attorney; If the attorney is a corporation and it is wound up or dissolved, the power of attorney is typically revoked. This is because the corporation's existence is terminated, and it can no longer act as an attorney.
10. By efflusion of time - time appointed for performance of a task lapses. If the power of attorney is granted for a specific period or task, it may be revoked when that period expires or the task is completed.
11. By fulfillment of the purpose for which the attorney was appointed;
Here's a detailed explanation of each element listed under "Revocation of Powers of Attorney": If the power of attorney is granted for a specific purpose, it may be revoked when that purpose is fulfilled.in the case of Frith Vs. Frith (1906),[13] a manager sought to claim power of attorney which would authorise him to enter into possession of and manage estate in Turks and Caicos island, and receive rent and profits to pay debt due to the owners. It was irrevocable because he had separately undertaken at their request to guarantee the payment of a debt secured by mortgage over the estate.
"To allow an agent to exercise his authority after it has been revoked would amount to the specific enforcement of the relationship which is by it's nature not specifically enforceable."
[1] MURABAZI HUSSAIN V IREEN LEMBA (2008) ZR SCZ
[2] Attwood v. Mullings 7 B. & C. 278.
[3] 1977 AIR 734, 1977 SCR (2) 451, AIR 1977 SUPREME COURT 734, 1977 3 SCC 474, 1977 2 SCR 451.
[4] https://www.scribd.com/document/630239606/power-of-Attorney
[5] Jonmenjoy Coondoo v. George Alder Watson BS651345
[6] Adaikappa Chettiar v. Thomas Cook & Son (Bankers) Ltd. AIR 1933 PC 78
[7] Chishala Karabasis Nivel & Another v Mwale (Appeal 161 of 2015) [2018] ZMSC 321 (25 September 2018)
[8] https://www.law.cornell.edu/wex/power_of_attorney
[9] Ibidi
[10] Lands and Deeds Registry Act Chapter 84 of the Laws of Zambia
[11] https://dentonlegacy.com/practice-areas/power-of-attorney/
[12] "What Are The Duties Of A Power Of Attorney? - Edmonton Law Firms" https://prowsebarrette.com/what-are-the-duties-of-a-power-of-attorney/#:~:text=A%20power
[13] Frith v Frith (1906) UKPC 18
ABOUT THE AUTHOR
Teddy Chipolya is a second-year law student at the University of Copperbelt. He writes this in his personal capacity.