Please don’t ask me what is up with this post title because I don’t even know what I’m tryna say other than the fact that you will understand the concept of POA more.
Who is an attorney? An attorney is an agent. Who is an agent? I’m sure the answer to that is not far-fetched for you, having read Commercial law/Commercial Transactions at some point in your academic life. The truth is people are not always going to be available to do everything they need to do per time. The power of attorney is a very useful tool not just to get other people to do your task but sometimes to settle debts.
The first thing to know about power of attorney: it must be IN WRITING, then if it is going to confer a power to execute a deed it’s going should have been done by deed. Deed requires deed
Revoking the power
Now what happens when you permit someone to do something as huge as selling your land or receiving the rents on your property? Does this mean you can’t do that same act? Darling, of course you can. Let’s say you hire a housekeeper to clean your house, it doesn’t mean you can’t wake up one morning with a bout of OCD and scrub your ceiling if you like. When this happens, the cleaning personnel is not likely to sweep the same floor you just swept right? So when you sell a property which is the subject of a POA, the POA is revoked over that subject matter.
You may revoke a POA expressly in writing or deed depending on how it was created. You cannot use a lesser medium (ordinary writing) to revoke something created by a higher medium (deed)
By the operation of law: if either the donor or donee kicks the bucket, becomes a lunatic, goes bankrupt, aint no power of attorney no more. It is revoked.
This points to circumstances where a power of attorney will not stand revocable in any of the ways pointed out above. Even when the donor wants to revoke by deed, and the POA was made irrevocable, the donee must consent to its being revoked.
Remember we said POA of attorney is not just for delegation, it can be used to settle debts. So Let’s say Mr Augustine has a property in Surulere attracting a monthly rent of 50,000. Mr Augustine owes Ms Camilla 500,000. Mr Augustine can execute an irrevocable POA in favour of Ms Camilla so that she receives the rent over the property until the amount is settled. How does this happen? Real simple: Mr Augustine declares the POA irrevocable for 10 months (because 50k times 10 = 500k) or until the consideration (debt) is settled. Once this is done even if poor old Mr Augustine kicks the bucket shortly after, the POA is still on until dear Ms Camilla gets her money back, complete. Even the gates of Mr Augustine’s bereaved family cannot prevail against her.
There are 2 types of irrevocability
Irrevocability + consideration: this one you just mention the consideration and then declare the POA irrevocable. You need not mention a specific time frame as the POA would be on for as long as the consideration is unsettled.
Irrevocability + fixed period not more than 12 months: This one there isn’t necessarily a consideration (if there is, no problem) but you just feel like making the donee feel safe, so you just declare the POA irrevocable for a period of x months. It must not exceed 12 months. If it does, it would be irrevocable for 12 months and after 12 months it stands irrevocable.
All this revocability business is not fair, so does that mean if Mr Donee sells property for which he was given a valid, though revocable POA, and just before he was able to perfect the title, Mr Donor dies; Mr Donee and the buyer are on their own? Well the law mitigates that for Donee, if he can write in the instrument of transfer that at the time of acting as an attorney he knew of no circumstances that could invalidate the action, or something along those lines, he is safe and once again the gates of Mr Donor’s family cannot prevail against the transaction.
There’s a clause in a POA saying, and for incidental matters; what are we saying? Because you cannot possible mention all the little tasks the donee would have to do to carry out the main task you are delegating to him, you just say, and other incidental acts.
If you tell the housekeeper to take care of the living room and other activities, does cooking food fall under activities? No you did not send her. So it is for the POA, that clause is strictly construed in line with the main act. So if you give someone a POA to receive rents on your behalf, the incidental purpose would be to enter the compound, contact the tenants, etc, NOT to sell the property biko, how is that incidental to receiving rents? That was one of the issues in Abina v. Farhat (side note: this case is the memory verse when it comes to POAs, you could cite it for any issue, well, almost) #lawstudentshortcuts #notimetocramallthecases
Let’s get back to Mr Augustine, so he has another property in Lekki Phase 1 but there are some fringe members of the family he bought the property from who have brought action for declaration of title. He walks up to you right after your call to bar, he wants you to defend the matter for him in court, then he thinks it’s time to put the property up for rent. Draft the power of attorney he will need to execute for you his beloved lawyer. Let it reflect on the POA that you will receive payment for your work from the rent. Don’t dull, make it irrevocable too.
By this Power of Attorney I Mr Augustine of [his address] appoint [your name] of [your address] to be my true and lawful attorney, and in my name and on my behalf to do the following acts:
- Institute and diligently prosecute an action for declaration of title at the against the members of the ________ family, over my property at ____________ Lekki Phase 1
- Solicit for tenants and execute a tenancy agreement for my property at __________ Lekki Phase 1
- All other acts incidental and necessary to the above.
IN WITNESS OF WHICH THE DONOR HAS EXECUTED THIS DEED IN THE MANNER BELOW, THE DAY AND YEAR FIRST ABOVE WRITTEN
SIGNED SEALED AND DELIVERED BY THE WITHIN NAMED DONOR
IN THE PRESENCE OF: