A power of attorney is a formal arrangement by which one person (‘donor’) gives another person (‘attorney’) the authority to act on his behalf and in his name. Powers of attorney are very useful when dealing with land transactions. Where a registered proprietor resides overseas but is unable to travel due to ill-health or for any other reason, he can execute a power of attorney granting another person (an attorney-in-fact) the power to deal with his property locally.

Please bear in mind however, that the term ‘attorney’ is never to be equated with a trained attorney-at-law. The attorney in this context is simply equipped with certain authorities to exercise powers that the donor would have exercised had he been present. Set out below are a number of important points that property owners should have knowledge of before executing a power of attorney.

The donor must be capable of understanding the nature and effect of the power of attorney he is purporting to grant, that is, he must have mental capacity. This is of particular importance as the donor must be fully aware of the powers he is granting, as well as the consequences of granting such a power. Where it is found that the donor lacked mental capacity to create a power of attorney, the purported grant is invalid and any transaction between the attorney and a third party would be void. The fact that neither the attorney nor any third party was aware of the donor’s mental incapacity is irrelevant.

An attorney-in-fact can be anyone above the age of 18 years. However, the donor must ensure that the attorney is someone who is considered to be trustworthy as they are given the task of handling their most important real estate affairs. A power of attorney can be used to deal with a wide range of transactions concerning real estate and as such the donor must ensure that only the powers he intends to grant are stated in the document. For example, the attorney can be given the power to enter into sale agreements, leases, other contracts, transfers and mortgages in relation to properties owned by the donor. By entering into such agreements, the attorney may be able to sell, transfer or lease properties belonging to the donor as well as collecting all monies in relation to same. Importantly, the attorney may be given the power to institute legal proceedings in court on behalf of the donor in order to recover possession of properties owned by the donor.

Pursuant to the Registration of Titles Act, all powers of attorney concerning real estate must be executed as a deed, stamped with the requisite stamp duty and recorded in the Island Record Office. The power of attorney must be executed by the donor and the donor’s execution of the power of attorney must be attested by a witness. In Jamaica, the preferred witness is a Justice of the Peace. Where an ordinary witness attests to the execution of the document by the donor, the witness will still have to go before a Justice of the Peace who will then attest to the witness’s signature. If the donor resides overseas, the power of attorney may be executed in the presence of a Notary Public. Alternatively, another person may sign the power of attorney on behalf of the donor at his direction and in his presence and in the presence of two witnesses who attest the signature. This alternative method of execution is intended to be used in a case where the donor of the power is unable to sign.

Once the power of attorney has been executed, it must be submitted to the Stamp Office for stamping within fourteen (14) days of execution. Failure to do so will attract a penalty. Thereafter, the power of attorney must be submitted to the Island Record Office which is located at

the Registrar General’s Department for recording as a public record within thirty (30) days of execution. The Island Record Office has the power to refuse the document in cases where it was not submitted for recording within the requisite time. A copy of the stamped and recorded Power of Attorney that grants powers in relation to registered land must also be lodged at the Titles Office.

The attorney-in-fact must ensure that he acts in accordance with the terms of his authority. He should carry out his functions with extreme care and skill and must never put himself in a position where his duties as attorney conflict with his own personal interests. An attorney is only entitled to be remunerated for his services if the terms of his appointment expressly or impliedly make provision for such payment. For the avoidance of doubt, it is sensible to include in the power of attorney a clause expressly stating whether or not the attorney is to be remunerated and, if so, on what basis.

In general, a power of attorney may be revoked by express revocation upon the execution of a deed or implied revocation where the donor acts inconsistently with the continued operation of the power. Where the power of attorney is revoked by express revocation, the donor must ensure that the attorney is given notice of such revocation. Additionally, where a donor dies

or becomes mentally incapacitated, the power of attorney may be automatically revoked.

Samantha Moore is an associate at Myers, Fletcher & Gordon and is a member of the firm’s property department. Samantha may be contacted via samantha.moore@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.