A Power of Attorney is a document by which a person called a "donor" appoints and authorizes another called the "donee" to act on behalf of the donor.
The Power of Attorney does not confer or transfer any interest or title in any property on the donee as it is merely an authority to act on behalf of the donor.
The Power of Attorney may confer either General or Specific Powers or both on the donee. The General Powers are powers that are broadly provided to cover the subject matter e.g a power given to the donee to do all that the donor can lawfully do. This does not specify what the donee is authorized to do, it rather gives the donee the powers to do anything and everything the donor can do lawfully.
The Specific Power refers to powers given in respect to specific or particular acts such that the donee is only limited to do certain acts and not all acts that the donor can lawfully do. For example, power to collect rent, issue notices and manage the real properties of the donor, power to sell and execute contracts on behalf of the donor, etc.
A Power of Attorney is either revocable or irrevocable. When it is revocable, it means that the Power of Attorney can be cancelled or withdrawn at any time and for any reason. Under the Nigerian law, where it is irrevocable, it is either irrevocable for a fixed period (usually not more than 12 months) or irrevocable for a valuable consideration or coupled with interest.
When a Power of Attorney is irrevocable for a fixed period, it means that it can not be cancelled or withdrawn until the period stated in the document has elapsed and this period must not exceed 12 months. When a Power of Attorney is for a valuable consideration, it means that the donee is given monetary compensation in consideration for the instructions he will carry out on behalf of the donor. Also, where the Power of Attorney is coupled with interest, it means that the donee has an interest, a right or title over the property which must be a subject matter in the Power of Attorney and the Power of Attorney can not be cancelled or withdrawn until the donee recovers his interest in the subject matter.
The implication of this is that ordinarily, the death or bankruptcy of the donor would as a matter of law cease the Power of Attorney but with this "coupled with interest", the death or bankruptcy of the donor can not cease the Power of Attorney and it will continue even after the death of the donor until the interest for which it was created has been recovered by the donee.
Please note that when a Power of Attorney is to be exercised outside Nigeria, it must be witnessed or certified by a Notary Public.
How to use this document
This document can be used by any individual or a company who may not be able to carry out his acts personally due to being engaged in a busy schedule, ill health, unavailability or where the expert skill of the donee is required. Consequently, the individual or company appoints another (the donee) to do specified acts on their behalf.
Ordinarily, the person appointed does not have the rights to do these specified acts but because of this document, he can do all that is stated in the document and must not do anything not expressly stated in the document. Also, the donor must be very careful to choose an honest and trust worthy person to act on his behalf.
This document can be used for anything actually, but in Nigeria it is mostly used for property transactions and it is a registrable instrument. This document can be used for the following:
1. For receiving rates, rents, profits on behalf of the donor.
2. For collecting money on behalf of the donor.
3. Buying, selling and managing the properties of the donor etc.
After filling this form correctly, the donor should sign the document. If the donor is a Company, the common seal should be placed on the document and two directors of the company must sign the document.
Also, where this Power of Attorney is to be exercised outside Nigeria (for example, where the power conferred on the donee relates to properties located outside Nigeria), a Nigerian Notary Public must affix his notarized seal on the document.
After this is done, the donor can keep a copy and give a copy to the donee for record keeping. Note that if the donee is granted the authority to sell an immovable property in Nigeria and such property is located in the Northern, Eastern parts of Nigeria, the Power of Attorney authorizing the donee to do so must be registered at the relevant Land Registry.
The Property and Conveyancing laws are applicable, this is used in the Western parts of Nigeria. The Conveyancing Act is applicable to the Eastern part of Nigeria. The Land Instrument Registration laws of various States in Nigeria are also applicable depending on the State the property (which is a subject matter in the document) is located.
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