Power Of Attorney

Question 1

What is a power of attorney?

Answer 1

A power of attorney is an instrument by which the principal (donor) appoints an agent (donee) and confers authority on him to perform specified acts on his behalf.

Question 2

What is the nature of a power of attorney?

Answer 2

A Power of Attorney is an instrument of delegation, not alienation, and cannot be used to transfer interest in land.

Question 3

What is the usual form of a Power of Attorney?

Answer 3

A Power of Attorney is usually in the form of a Deed Poll, executed by only the Donor.

Question 4

Should the donee sign the Power of Attorney?

Answer 4

It is advisable for the donee to sign the POA if he gave consideration for it or if it was made in fulfillment of an obligation.

Question 5

What must a Power of Attorney specify?

Answer 5

It must expressly specify the powers that the donee can exercise as an agent of the principal/donor.

Question 6

When is a Power of Attorney required to be by deed?

Answer 6

A POA must be by deed if the donee is expected to execute a deed, such as selling land or creating a legal mortgage or lease above 3 years.

Question 7

What happens if the donee acts within the scope of the Power of Attorney?

Answer 7

As long as the donee acts within the scope, he incurs no liability; any liability falls on the donor.

Question 8

Can the donor still exercise powers conferred on the donee?

Answer 8

Yes, the donor can exercise the powers without restriction, leading to implied revocation of the POA.

Question 9

Who must execute a Power of Attorney for family property?

Answer 9

A POA for family property must be executed by the head of the family as one of the donors or as the sole donor; otherwise, it is void.

Question 10

Is a Power of Attorney revocable?

Answer 10

Yes, a Power of Attorney is revocable unless expressed to be irrevocable.

Question 11

What is required for the donor and donee in a Power of Attorney?

Answer 11

Both the donor and donee must be legally capable (juristic persons) at the time of creation and throughout the period of the POA.

Question 12

What is the stamp duty requirement for a Power of Attorney?

Answer 12

It attracts fixed stamp duty and does not require the consent of the Governor since it does not transfer interest in land.

Question 13

What is required for execution of a Power of Attorney outside Nigeria?

Answer 13

It should be executed before a Notary Public to ease proof of due execution.

Question 14

When might a Power of Attorney be required?

Answer 14

It may be required when the donor cannot act personally due to unavailability, requires expert skills, is ill, or needs to secure a purchaser’s interest.

Question 15

What is the distinction between Power of Attorney and Sale of Land?

Answer 15

Power of Attorney does not transfer interest in land, while conveyance does.

Question 16

How can a Power of Attorney be revoked?

Answer 16

It can be revoked by express revocation, implied revocation, or revocation by operation of law.

Question 17

What is express revocation?

Answer 17

Express revocation occurs when the donor explicitly fires the donee or revokes the power, especially if the appointment is by deed.

Question 18

What is implied revocation?

Answer 18

Implied revocation occurs when the donor deals with the subject matter of the Power of Attorney in a way that makes it impossible for the donee to act.

Question 19

What leads to revocation by operation of law?

Answer 19

It occurs if the donor suffers death, insanity, liquidation, bankruptcy, or other legal incapacity.

Question 20

What makes a Power of Attorney irrevocable?

Answer 20

A POA is irrevocable if given for valuable consideration and expressed to be irrevocable or if made irrevocable for a fixed period not exceeding 12 months.

Question 21

How are powers in a Power of Attorney construed?

Answer 21

The powers conferred in a POA are strictly construed, meaning the donee can only exercise powers expressly stated.

Question 22

What protects third parties dealing with a donee?

Answer 22

A bona fide purchaser for value without notice of revocation is protected, as is a donee who makes a statutory declaration of non-revocation.

Question 23

What are the formal parts of a Power of Attorney?

Answer 23

They include the commencement clause, date clause, recital clause, appointment clause, power and authority clause, omnibus clause, irrevocability clause, testimonium clause, execution clause, and attestation.

Question 24

What is required for stamping a Power of Attorney?

Answer 24

Power of Attorney attracts fixed stamp duty and must be stamped within 30 days after execution to be admissible in court.

Question 25

What is the registration requirement for a Power of Attorney?

Answer 25

It is registrable within 60 days after execution, depending on the applicable Land Instrument Registration Law.

Question 26

What should Mr. James do to sell his house through his sister?

Answer 26

He should execute a power of attorney in favor of his sister.

Question 27

What are other instances when a Power of Attorney may be required?

Answer 27

Instances include unavailability of the donor, need for expert skills, ill health, securing a purchaser’s interest, or managing a vast estate.

Question 28

What happens if the donor sells the property before the donee can act?

Answer 28

The sale is valid as the donor has the legal right to deal with the property, which implies revocation of the power of attorney.