Grand Master - , 2:26 am On 9 Sep 2017
If you are a lawyer or law students you are likely to have come across the term 'power of attorney', or will come across the phrase in practice. In the crux of commercial transaction and its attending complexities it is sometimes expedient for people to appoint other persons to act on their behalf as their agents.
What is a Power of Attorney?
A power of attorney is a legal instrument in which a person appoints another to act on his behalf in private affairs, business, and other legal matters (this includes instituting an action in court) see Section 14, Property and Conveyancing Law, 1959.
The donor(giver) of the power is called the Principal, while the donee (receiver) of the power is called the agent or attorney-in-fact.
There is no particular formality when granting a power of attorney. That is it may be oral, written or by deed. However, to raise the presumption of validity, it is advised that a power of attorney be in writing, singed by both parties, and notarised. This is however subject to the equal dignity rule, which states that a power of attorney to execute a deed must be granted by deed. see UTC V Philips (2012) 6 NWLR (Pt. 1295) 144
The capacity to create a power of attorney is the same as the capacity under the law of contract. An infant can appoint an attorney with respect to necessaries, and contracts beneficial to the infant. A person of unsound mind lacks the capacity to appoint an attorney, the capacity of registered companies is covered in the covered in the Companies and Allied Matters Act.
A power attorney may be special, which means it is restricted to a specific act; where for example, A appoints B to sell his house. Or general, in that the agent has power to do all that the principal had power to do. It may be revocable, where the principal reserve the power to revoke the appointment or irrevocable where the principal expressly states to the effect. Where the power of attorney is irrevocable, the principal can not revoke the power until the expiration of the time for which the power was granted.
Upon the incapacitation of principal, the power of attorney is terminated. However, a power of attorney may be made durable by containing a provision to the effect that it will continue despite the incapacitation of the principal; or springing in that it will commence upon the incapacitation of the principal.
A power of attorney conferring an interest in land is a registerable instruments within the meaning of the Land Instrument Registration Law and must be registered if not it will be invalid.
A power of attorney can be terminated expressly, impliedly or by operation of law. Where the principal dies or is incapacitated, the power of attorney is terminated (A durable power is not terminated by incapacitation). As regards express termination, it must be terminated in the same manner in which it was created, whether by deed or in writing.
If the document has been registered, it can be terminated by revoking the durable power of attorney by filing a written revocation in the Registrar of Deeds office where the original document was filed.