The ability to manage your landed property effectively in Nigeria may not be a germane consideration when you have a very small estate, or you are always available to oversee the affairs of your estate in Nigeria. However, where the reverse is the case, then it becomes expedient to manage your landed properties in Nigeria through another person who is resident in Nigeria for effective management and administration of your estate.
Therefore, a Power of Attorney offers a good medium for the management of your properties in Nigeria even when you are outside the shores of the country, or very busy to oversee the affairs of your landed properties. You can actually create a legally binding relationship between yourself and your agent/attorney who will act on your behalf, and as such he is bound to act only within the powers you have donated to him.
WHAT IS POWER OF ATTORNEY (“POA”)?
A POA is a document that gives authority to a person to act as an agent for another person. It is also an instrument of authorisation to the agent (the person being given the power or instructions) to do certain acts on behalf of the property owner (the person giving out the authority).
A POA DOES NOT confer or transfer property or title from the property owner to the agent, rather it is a mechanism through which the intentions or desires of the principal are carried out by the agent as was decided in the cases of Ude v. Nwara, and Chime v. Chime.
The owner of the property who donates or transfers his authority is known as the ‘’Donor’’ or ‘’Principal’’, while the person to whom the authority is transferred is known as the ‘’Donee’’, ‘’Agent’’ or “Attorney”. Hence, as a property owner or intending owner who is very busy or outside the shores of Nigeria, you can manage your properties or purchase one by donating or transferring your powers to another person who can professionally act on your behalf.
FEATURES OF POWER OF ATTORNEY
The following are features of a Power of Attorney:
- It is an instrument of delegation, authorisation or representation – Chime v. Chime.
- Generally, it does not transfer interest in land or title to the Donee or Agent – Ude v. Nwara.
- It is usually executed by the property owner (Donor/Principal) alone.
- It is usually in writing but not necessarily by deed if the act to be performed by the agent is not required by law to be by deed – Abina v. Farhat. However, if the act is required to be done by deed, then the Power of Attorney itself must be by deed – Powell v. London and Provincial Bank.
- Power of Attorney cannot be donated to a person who cannot sue and be sued.
- Generally, the death of the principal or donor terminates the Power of Attorney.
HOW DO I DONATE A POWER OF ATTORNEY TO SOMEONE TO MANAGE MY AFFAIRS?
Donating or creating a valid POA is not as complicated as most people think. There are only two parties in a POA which are the Principal and Agent. The principal needs to specify the type of POA he is donating to the agent, i.e., whether a General or Specific POA; Revocable or Non-Revocable POA.
The General POA empowers the agent to carry out many acts, or take a wide range of decisions on behalf of the principal like filing a suit in court or defending one filed against the principal; entering into an agreement; negotiating and signing a contract, executing a project, collect rents, etc.
On the other hand, a Specific POA gives legal authority to the agent to represent the principal on a specific matter only, such as purchasing or selling a particular property without more. If the POA is made irrevocable, it means that the principal cannot terminate it at will unless the consideration for which it was given is satisfied or the period of twelve months elapses.
When you are donating a POA to a lawyer to represent you or to act on your behalf, the lawyer’s name must be expressly stated and not just the firm’s name – NBN v. Koban Bros. Ltd.
Also, the acts or powers you are donating to the agent must be clearly stated. A POA carries some legal consequences, hence due diligence must be carried out before drafting it to ensure that it complies with the requirements of the law. The document is dated and then the Donor signs it in the presence of his witness.
WHEN AND WHY DO I DONATE A POA?
POA is very important in both commercial and real estate transactions. The following are reasons and instances when a POA is needed:
- When you are very busy or unavoidably absent from the country.
- When you cannot effectively handle your affairs personally because of extreme old age.
- Period of protracted or chronic sickness.
- When you have a vast estate or so many transactions to handle.
- When expertise is required from professionals which you do not have.
- POA affords you the opportunity to choose who takes care of your affairs rather than the court making such appointment.
ADVANTAGES OF DONATING A POA
- It affords you the opportunity to remain anonymous or to distance yourself from the properties for the agent/attorney to manage same.
- It facilitates quick and easy commercial and real estate transactions.
- It allows experts in a given field to take informed decisions on behalf of the principal.
I AM AROUND: HOW DO I TERMINATE A POWER OF ATTORNEY?
Generally, a POA may be terminated or revoked by the principal or donor in the following ways:
- Expressly: This is when you clearly inform your agent of your intention to revoke the POA and the powers of your agent in the POA are terminated forthwith. If the POA was created by a deed, it has to be terminated by a deed as well.
- Impliedly: A POA is impliedly terminated when you do not expressly inform your agent of your intention or desire to terminate the POA, rather you decided to deal with the property in such a way that your agent can no longer carry out the powers you donated to him again. For instance, after creating the POA for your agent to sell a piece of land, you later sold the piece of land by yourself before your agent could exercise that power to sell. This means that you have revoked the POA by your conduct and the power of your agent to sell the property terminates. This is so because the fact of giving a POA to the donee/agent to deal with your property does not extinguish your right to do the same act you donated to your agent in the POA.
- Operation of Law: The law provides certain circumstances that automatically revoke POA. For instance, if the donor/principal dies, becomes insane, bankrupt, or suffers any other legal incapacity while the POA is still valid, then those circumstances will revoke the POA. However, the exceptions to this general rule is that where the POA is coupled with an interest or it is given for a consideration, then it is irrevocable until the interest is exhausted or the consideration is satisfied. And if it is granted for a defined period, it remains irrevocable until the period expires, usually a period of twelve months.
From the explanations given above, it is now very clear that a POA is a very useful legal instrument that can be used to facilitate both real estate and commercial transactions. Most importantly, the difficulty posed by distance or the challenges faced by property owners or intending owners who are outside the country has been greatly mitigated by the instrumentality of a POA.
Also, you can successfully delegate your powers and authority to another person to do virtually everything you can legally and personally do through the donation of a POA. Hence, the need to consult professionals to draft a valid POA that will properly reflect your wishes and intentions, because the court usually interprets the contents of a POA strictly.
To this end, to take advantage of a POA, you will definitely need a professional to represent you as your agent, who can effectively or properly carry out your wishes or intentions regarding your property and commercial transactions.