A Power of Attorney is a document drawn for/by an individual (Donor/Principal) authorizing another individual (Attorney/Agent) to make decisions on their behalf and/or manage the Donor/Principal’s property, personal affairs or financial matters. There is no prescribed format for drafting a Power of Attorney, However, a Power of Attorney can be fine-tuned to fit the specific requirements of the Donor/Principal. The powers granted to a Donee/Attorney can transcend to granting the Donee/Attorney the authority to make decisions over the Donor/Principal’s health care needs in case of incapacity.
In Kenya, there are three (3) categories of Power of Attorney i.e. Specific Power of Attorney, General Power of Attorney and Irrevocable Power Of Attorney. A Specific Power of Attorney gives precise or limited powers to the Attorney/Agent. A General Power of Attorney grants the Donee/Attorney the authority to act on behalf of the Donor/Principal in all situations and to take all/any actions that a Donor/Principal could take regarding his/her own property, personal or financial matters. On the other hand, an Irrevocable Power of Attorney cannot be revoked by the Donor/Principal.
Scope of a Power of Attorney
A Donee/Attorney cannot extend the powers granted in a Power of Attorney beyond what was expressly stipulated or intended by the Donor/Principal. A Donee/Attorney can be held liable for any acts or omissions that contravene the scope of the Power of Attorney. It is important to note that a Donee/Attorney cannot delegate the authority to some other person to behave as an agent.
Clauses in a Power of Attorney
As stated above, a Donor/Principal can draft a Power of Attorney to fit his or her specific requirements. Briefly, a Power of Attorney should identify the Donor/Principal and Attorney/Agent, the date from which the Power of Attorney comes into force, and the date of termination of the Power of Attorney if it is limited by time. If it is a General Power of Attorney then its scope of acts should be clearly outlined and for Specific Power of Attorney, the scope has to be clearly mentioned. The Power of Attorney must also be properly executed by both the Donor/Principal and the Donee/Attorney.
Registration of a Power of Attorney
Regulations 17, 18 and 19 of the Land Registration (General) Regulations, 2017 require that a Power of Attorney must be registered. It is instructive to note that the registration of a Power of Attorney has to proceed with payment of Stamp Duty. Payment of Stamp Duty is a mandatory requirement and safeguard since as Section 19 (2) of the Stamp Act, CAP. 480, no instrument chargeable with stamp duty shall be filed, enrolled, registered or acted upon by any person unless it is duly stamped.
Where the Power of Attorney is in relation to immovable property, then it has to be registered. A Donee/Attorney cannot exercise the powers bestowed in respect of immovable property unless the Power of Attorney is registered. (See Francis Mwangi Mugo v David Kamau Gachago [2017] eKLR). Upon payment of Stamp Duty, the Power of Attorney has to be presented to the Lands Registry with all required documents which include copies of proof of ownership and identification documents.
Revocation of a Power of Attorney
Both General Power of Attorney and Specific Power of Attorney can be revoked by the Donor/Principal at any time. Regulation 20 of the Land Registration (General) Regulations, 2017 gives the Donor/Principal the right to revoke a Power of Attorney by issuing a Notice of Revocation of a Power of Attorney in the prescribed Form LRA 8. Upon revocation, it is prudent to notify the Donee/Attorney and any person (s) or entity (ies) of the revocation.
There are instances when the issuance of a Notice of Revocation under Regulation 20 is not necessary and a Power of Attorney is revoked automatically these include but are not limited to; where the Donee/Attorney dies or becomes insane or when the main purpose of executing a Power of Attorney has come to an end. There is to establish jurisprudence on whether a Power of Attorney is automatically revoked when a Donee/Attorney, who married a Donor/Principal, gets divorced or legally separated from the Donor/Principal.
Can a person prepare their own Power of Attorney?
Due to the complexity and need for specificity in the scope of a Power of Attorney, a good understanding of the law, language of drafting and registration procedures is required. Therefore we recommend instructing an Advocate to draft a Power of Attorney. However, nothing stops a person from preparing a Power of Attorney on their own.
This write-up is for informational purposes only and should not be construed as a legal opinion. If you have any queries or need clarifications, please do not hesitate to contact Gregory Makambo, Partner, (gmakambo@makambolaw.com), Kelvin Mwaniki, Associate, (kmwaniki@makambolaw.com) or your usual contact at our firm, for legal advice.