CHAPTER
81
POWERS OF ATTORNEY |
ARRANGEMENT OF
SECTIONS |
SECTION |
|
|
Execution of power of attorney. |
Enduring power of attorney. |
Execution under power of attorney. |
Deposit of instrument in the Registry. |
Revocation of an instrument deposited under
section 6. |
Effect of power of attorney, for value made
absolutely irrevocable. |
Effect of power of attorney for value or not,
made irrevocable for fixed time. |
Payment by donee under power without notice of
death. |
|
CHAPTER 81 |
POWERS OF ATTORNEY |
An Act to
make provision with respect to powers of attorney and to enable powers of
attorney to be created which will survive any subsequent mental incapacity of
the donor. | 12 of 1992 |
[Assent 19th May,
1992]
[Commencement 2nd April, 1996] |
1. This Act may be cited as the Powers of Attorney Act,
1992. | Short title. |
2. In this Act- | Interpretation. |
"enduring
power" means a power of attorney created under section 4; |
"Minister"
means the Minister responsible for Legal Affairs; |
"mental
disorder" has the meaning assigned to that expression by section 2 of the
Mental Health Act; |
"mental
incapacity", or "mentally incapable" means in relation to any
person, that the person is incapable by reason of mental disorder of managing
and administering his property and affairs; |
"purchaser"
has the meaning assigned to that expression by section 2 of the
Conveyancing and Law of Property Act; |
"Registrar"
means the Registrar or Deputy Registrar of the Supreme Court; |
"Registry"
means the Supreme Court Registry. |
3. (1) An instrument creating a power of attorney shall
be signed and sealed by, or by direction and in the presence of, the donor of
the power. | Execution of power of attorney. |
(2) Where an
instrument creating a power of attorney is signed and sealed by a person by
direction and in the presence of the donor of the power, two other persons
shall be present as witnesses and shall attest the instrument. |
(3) This section
applies without prejudice to any requirement in, or have effect under, any
other Act as to the witnessing of instruments creating powers of attorney and
does not affect any written law relating to the execution of instruments by
bodies corporate. |
4. (1) The authority of a donee given by an instrument
creating a power of attorney that- | Enduring power of attorney. |
(a) provides
that the authority is to continue notwithstanding any mental incapacity of the
donor; and |
(b) is signed
by the donor and a witness to the signature of the donor, other than the donee
or the spouse of the donee, |
is not
terminated by reason only of the subsequent mental incapacity of the donor that
would but for this Act terminate the authority. |
(2) A power of
attorney described in subsection (1) may stipulate that it takes effect on the
occurrence of a specified event or contingency including, but not limited to,
the subsequent mental incapacity of the donor. |
5. The donee of a power of attorney may, if he thinks
fit- | Execution under power of attorney. |
(a) execute any
instrument with his own signature and, where sealing is required, with his own
seal; and |
(b) do any
other thing in his own name, |
by the
authority of the donor of the power; and any instrument executed or thing done
by a donee under such power of attorney in that manner shall be as effective as
if executed or done by the donor of the power. |
6. (1) Subject to subsection (2) an instrument creating
a power of attorney the execution of which is verified by an affidavit or a
declaration may with the affidavit or declaration be deposited in the registry. | Deposit of instrument in the Registry. |
(2) An instrument
creating an enduring power shall be deposited in the registry and no enduring
power shall be valid unless it has been deposited in the Registry under this
section. |
(3) A file of the
instruments deposited under this section shall be kept in the Registry and any
person may search that file and inspect any instrument deposited. |
(4) A person may
obtain a copy of any instrument deposited in the Registry upon payment of the
prescribed fee and that copy may be stamped or marked as an office copy by the
Registrar. |
(5) A copy of any
instrument stamped by the Registrar under subsection (4) shall without further
proof be sufficient evidence of the contents of that instrument and of the
deposit thereof. |
7. Where an instrument deposited in the registry is
revoked the Registrar of the court, on being satisfied by affidavit or
declaration that the instrument has been revoked, shall endorse on the
instrument, a certificate stating that it has been revoked and the date thereof
and the instrument shall be deemed to have been duly revoked as from the date
of the certificate. | Revocation of an instrument deposited under section 6. |
8. (1) If a power of attorney, given for valuable consideration
is in the instrument creating the power expressed to be irrevocable, in favour
of a purchaser- | Effect of power of attorney, for value made absolutely
irrevocable. |
(a) the power
shall not be revoked at any time, either by anything done by the donor of the
power without the concurrence of the donee of the power, or by the death,
marriage, mental incapacity or bankruptcy of the donor of the power; |
(b) any act
done at any time by the donee of the power, in pursuance of the power, shall be
as valid as if anything done by the donor of the power without the concurrence
of the donee of the power, or the death, marriage, mental incapacity or
bankruptcy of the donor of the power, had not been done or happened; and |
(c) neither the
donee of the power nor the purchaser shall at any time be prejudicially
affected by notice of any thing done by the donor of the power, without the
concurrence of the donee of the power, or of the death, marriage, mental
incapacity or bankruptcy of the donor of the power. |
(2) This section
applies only to powers of attorney created by instruments executed after the
commencement of this Act. |
9. (1) If a power of attorney, whether given for
valuable consideration or not, is in the instrument creating the power
expressed to be irrevocable for a fixed time therein specified, not exceeding
one year from the date of the instrument, then, in favour of a purchaser- | Effect of power of attorney for value or not, made
irrevocable for fixed time. |
(a) the power
shall not be revoked, for and during that fixed time, either by anything done
by the donor of the power without the concurrence of the donee of the power, or
by the death, marriage, mental incapacity or bankruptcy of the donor of the
power; |
(b) any act
done within that fixed time, by the donee of the power, in pursuance of the power,
shall be valid as if anything done by the donor or the power with the
concurrence of the donee of the power, or the death, marriage, mental
incapacity or bankruptcy of the donor of the power, had not been done or
happened; and |
(c) neither the
donee of the power, nor the purchaser, shall at any time be prejudicially
affected by notice either during or after that fixed time of anything done by
the donor of the power during that fixed time, without the concurrence of the
donee of the power, or of the death, marriage, mental incapacity or bankruptcy
of the donor of the power within that fixed time. |
(2) This section
applies only to powers of attorney created by instruments executed after the
commencement of this Act. |
10. (1) Any person making any payment or doing any act,
in good faith, in pursuance of a power of attorney, shall not be liable in
respect of the payment or act by reason that before the payment or act the
donor of the power had died or become mentally incapable, or bankrupt, or had
revoked the power, if the fact of death, mental incapacity, bankruptcy or
revocation was not at the time of the payment or act known to the person making
or doing the same. | Payment by donee under power without notice of death. |
(2) This section
shall not affect any right against the payee of any person interested in any
money so paid; and that person shall have the like remedy against the payee as
he would have had against the payer if the payment had not been made by him. |
(3) This section
applies only to payments and acts made and done after the commencement of this
Act. |
11. The Rules Committee constituted under section 75 of
the
Supreme Court Act may make rules for any of the following purposes- | Rules. |
(a) for fixing
the fees to be taken in the registry in respect of the powers of attorney
deposited in the registry and other matters provided for by section 6 of this
Act; |
(b) for
prescribing the form and execution of an instrument creating an enduring power; |
(c) for
securing that no document is used to create an enduring power which does not
incorporate such information explaining the general effect of creating or
accepting the power; |
(d) for
securing that a document used to create an enduring power include statements to
the following effect- |
(i) by
the donor, that he intends the power to continue in spite of any supervening
mental incapacity of his; |
(ii) by
the donor, that he read or had read to him the information explaining the
effect of creating the power. |
(e) generally
for carrying out the objects of this Act. |