In Jamaica, many people rely on trusted friends and family members to handle important matters on their behalf. Members of our Jamaican Diaspora are also particularly dependent on persons back home to assist with transactions and tasks, including property management, which require a ‘man (or woman) on the ground’. Many of these arrangements can be formalised through the preparation and execution of a legal document called a power of attorney (PoA).

Although, on the face of it, the PoA may seem like a simple and straightforward document, the recent decision of the Judicial Committee of the Privy Council (the Privy Council) in the case of Fay Chang Rhule v Angella Smith serves as a strong warning to attorneys-at-law, and by extension, all members of the public, especially property owners, to take caution when treating with these legal instruments. Persons who wish to have a PoA prepared as well as persons seeking to rely on another party’s PoA are encouraged to obtain the legal advice of an attorney-at-law licensed to practise in Jamaica. In the Fay Chang Rhule case, the Privy Council highlighted that in conveyancing matters, there may be “red flags” that present themselves in a particular situation, which should reasonably put your attorney-at-law on suspicion, and if present, your attorney-at-law ought to conduct further due diligence checks to put their suspicions at ease.

But Wait, What is a Power of Attorney?

A PoA is a legal document that allows A (the “donor” or “principal”) to appoint B (the “donee” or “attorney”) to act or make decisions on his/her behalf and in his/her name. With careful and precise drafting of the PoA, the donor can set the scope of the donee’s powers, which may be general and far-reaching, or specific to a certain transaction or task. The PoA may also come to an end upon a date or time period contained therein or upon the donee’s completion of his/her assigned task. However, regardless of the duration stated in the PoA, in Jamaica, this legal instrument will typically come to an end on the donor’s mental capacity or death.

To be valid in Jamaica, the PoA must be signed by the donor in the presence of a justice of the peace or notary public, if the donor is signing overseas. The document must also be stamped at Stamp Office and registered at the Island Records Office. Where the PoA relates to real estate in Jamaica, same should also be registered at the National Land Agency to be enforceable.

How are PoAs Helpful?

An advantage of employing the PoA instrument is that it is highly customisable. It can be drafted in a way to suit the specific circumstances and needs of the donor. A donor may wish to grant a PoA if he/she is outside of the jurisdiction and finds it impractical to fly back to Jamaica to routinely sign or collect documents. A PoA may also be preferred by an elderly donor who wishes to have someone more competent to manage certain affairs on his/her behalf.

Use with Caution!

Although the flexibility and customisation offered by a PoA may be convenient for the parties involved, as demonstrated by the Privy Council decision, if not treated or prepared carefully, a PoA may be vulnerable to abuse and could create opportunities for fraud. For example, a poorly drafted PoA may give a donee more authority than intended by you, the donor, and could permit actions you may not anticipate. A PoA may even contain a forged signature, where a bad actor impersonating you, a property owner, could seek to give him/herself power to deal with your property. If such a situation were to progress, your property could potentially be transferred by the fraudster, using the PoA, to an innocent third party. By the time you discover what transpired, untangling the fraud could take years in court, or could even result in you losing your property altogether.

Why You Should Seek Legal Advice

One of the greatest risks persons often take is entering into a property transaction, which would include the preparation and signing of legal documents, without proper legal guidance. Although a quick Internet search for templates may be helpful in understanding broad topics and potential legal instruments available, it is always recommended to obtain legal advice from a practising attorney-at-law who is aware of the live issues and who can properly advise you on your particular rights, obligations and risks in the circumstances. Remember, there is no ‘one size fits all’ template for a PoA. Every PoA is different and may require different clauses or considerations.

In addition to reminding attorneys-at-law of their duties, the Privy Council’s decision also serves as a warning to the public to seek proper legal advice. Guidance from an attorney-at-law will help to ensure that:

•The required formalities for a valid PoA have been complied with;

•The authority granted to the donee is sufficient and appropriate for a particular purpose or transaction, depending on the donor’s intentions;

•The donor has capacity to grant the PoA; and

•The PoA is enforceable in Jamaica.

If you are planning to sell, purchase or have someone manage property in Jamaica and need someone to act on your behalf, having a valid and enforceable PoA may be the most appropriate option for you. Having this legal arrangement right from the start with a properly drafted PoA is undoubtedly more efficient than trying to fix a problem halfway through a transaction.

Stephanie Barnes is an Associate at Myers, Fletcher & Gordon, and is a member of the firm’s Property Department. Stephanie may be contacted via stephanie.barnes@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.