Berkeley Legal | Power of Attorney
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03 Feb Power of Attorney

A Power of Attorney is a document which gives authority to a person to act as agent or attorney for another person. It can be seen as an authorisation to a Donee (the person being given the power/instructions) to do certain acts on behalf of the Donor (the person donating/giving the power). Therefore, a Power of Attorney DOES NOT confer, transfer or alienate any property/title of a person; rather, it is a vehicle whereby these acts can be done by the Donee for and in the name of Donor.

When a Power of Attorney may be used

A Power of Attorney is a useful tool in ensuring that the affairs of a person are being managed by another and all actions carried out on behalf of the person has been properly authorized.

It is usually used in cases where:

  • The Donor is physically away from the properties or unavailable to manage the properties.
  • Ill-health or a physical impairment that prevents the Donor from personally handling his/her affairs.
  • The professional skill of the Donee is required. For example, a lawyer acting in his professional capacity to assist the Donor in disposing of his property and at the same time also carrying out acts that are the responsibility of the Donor with regards to that property as a result of the existence of a Power of Attorney.

Types of Power of Attorney 

There are two main types of Power of Attorney, they are:

General Power of Attorney – A general power of attorney gives the Donee broad powers to act on behalf of the Donor. These powers may include handling financial and business transactions.

Specific/limited Power of Attorney– This is where the power given is in respect of particular acts to be carried out. An example of this is where the power is given to sell a specific property.

Nevertheless, it is important to note that under both types of power of attorneys, the appointment may be for a fixed period and can be revoked at any time by the Donor provided the Donor still has the legal capacity to do so. On the other hand, the appointment may be irrevocable where it is given for consideration which can be in form of money or otherwise. A power of attorney ceases when the Donor dies.

 Essential requirements of a Power of Attorney

A power of attorney will only be valid upon the existence of the following requirements;

  • That both the Donor and the Donee must have legal capacity – This means that both parties must be of legal age and of sound mind.
  • That the Power of Attorney must be in writing- This is to ensure that the power and the instructions accompanying it are clear and can always be verified.
  • It must be executed by the Donor and authenticated by one of the following; a Notary Public, Court, Judge, Magistrate or Consul or representative of Nigeria.
  • Where it involves a property like land, it must be registered.

When is the registration of a Power of Attorney mandatory?

The registration of a Power of Attorney is mandatory in the following cases where:

(a) It affects land.

(b) It confers, transfers, limits, charges or extinguishes in favour of another party any right as to title or interest in land.

(c) It is a certificate of purchase.

(d) It is a Power of Attorney under which an instrument such as a Deed may be executed.

As such, where the Donee has the power to sell a property through a Deed of Assignment, the Power of Attorney giving that authority should be registered. Where the Power of Attorney is not registered, it will be ineffectual unless and until it is registered. This essentially means that the Power of Attorney cannot be given as evidence in court.

What are the implications of selling an asset using a Power of Attorney?

The Power of Attorney gives the Donee the right to exercise certain powers on behalf of the Donor. This means that an asset can be validly sold using a Power of Attorney as long as the Power of Attorney has been validly executed and specifies the power to sell the specific asset. The sale of the asset using the Power of Attorney would be just as authentic as if the Donor personally carried out the transaction himself.

How can a Power of Attorney be verified?

Where a person intends to enter into a transaction and the other individual is a Donee with a Power of Attorney, the document can then be verified through various means.

  • If the Power of Attorney is registered, it can be verified by conducting a search at the land registry.

However, if it is not registered, it can be verified by:

  • Written confirmation from the original Donor stating the name of the Donee (with proper identification) and confirming the powers conferred.
  • Sighting the original title documents in the possession of the Donee.

Conclusion

In conclusion, the Power of Attorney is a useful document that ensures that an individual can carry out transactions even when not physically present. It is commonly used in relation to property transactions like managing tenants, collecting rent, selling land or managing investments. This is because when the Donor is absent and unable to make decisions, his interest will continue to be protected by the Donee.

 

The information provided in this article is for general informational purposes only and does not constitute legal advice. If you require specific legal advice on any of the matters covered in this article please contact info@berkeleylegal.com.ng