Introduction

The reality of the world as it is today is that, most people are forced to self-isolate or be quarantined or, worse still, be bed ridden due to the Covid -19 virus. At a practical level, what this means is that the capability of being able to get things done has become difficult.

Having a Power of Attorney in place is the best way to overcome potential complication on the impacts of isolation or quarantine occasioned by the virus pandemic.

Power of Attorneys

A Power of Attorneys is simply an authority in writing through which one person (donor) enables another (attorney / donee) to act for him. Attorney/donee is a person who is appointed by another and has authority to act on behalf of another. The authority could be either:

• General: Authorises the donee/attorney to transact and generally conduct all lawful business, act or activity on behalf of the donor without prejudice to generally sign, attend and otherwise participate on behalf of the donor’s name in all documents, correspondence, meetings and other activities incidental to the donor.
• Special: Authorises the donee/attorney to act on behalf of the donor under specific, clearly laid-out circumstances.

The donee can use the authority to do only what he is authorized under the Letter of Attorney to do and no more. It is a general rule that an act done under a power of attorney must be done in the name of the person who donates a power, and not in the attorney’s name.

A power of attorney presupposes that the person donating it has capacity. As such, a person of unsound mind, for example, has no capacity to donate a power of attorney. Consequently where a person purports that he has a power of attorney donated to him by a person of unsound mind, the power is null in law. A power of attorney must be executed by the Donor of the Power and thereafter stamped and registered in the Register of Powers of Attorney. Thereafter, Stamp duty is payable by the donor/executor.

There is a colossal risk attached to designating someone as your power of attorney as such it must be someone you trust without hesitation. Depending on the type of power of attorney, the person you select will have access to and be able to make decisions about your health, home, business affairs, personal property, and financial accounts.

Revocation of power of Attorneys

Power of attorneys may be revoked through the following ways;

1. By the donor executing a revocation
2. By performance of the act it was created to perform
3. Expiry of time
4. Operation of the law e.g. when the donor becomes adjudged bankrupt, his power of attorney in relation to property or rights of which he was divested by the bankruptcy, is revoked by operation of law.

Execution of Powers of Attorney

The Land Registration Act No. 3 of 2012 under Section 48 provides that an instrument dealing with an interest in land shall not be accepted for registration where it is signed by an agent without a power of attorney. The original of such power of attorney must be filed. In the event that one wish to file a copy of the power of attorney then it must be with the consent of the Registrar and the copy must duly be certified by him.

However, an instrument may still be registered when signed by an agent without a power of attorney in certain circumstances. These are:

1. Under section 48(3) of the Land Registration Act, the guardian of a person under a legal incapacity or, if there is no such guardian, a person appointed under some written law is allowed to generally represent that person for purposes of the Act without necessarily obtaining a power of attorney, by way of an application for the same.
2. Under Cap 248 (Mental Treatment Act) one may apply to manage the property of an insane person. Such a person need not have a power of attorney.