Understanding Power of Attorney

A power of attorney (POA) is a legal document that gives a designated person, referred to as an attorney or agent, the authority to act for another person, known as the principal or donor, in their private affairs, business, or some other legal matter. A person appointed as such should be of the donor's choosing and aged 18 years or older.

The attorney may be given broad or limited authority to make decisions about the donor's property, finances, investments, or medical care. A person appointed as an attorney under such authority should not be confused with an attorney-at-law.

A POA is often used when the donor is physically unable to sign necessary legal documents. As such one will find that a POA is used in cases where the donor is seriously ill, disabled or for whatever reason is unable to present themselves to sign documents or appear before a tribunal or court. It is important that the donor must have the requisite mental capacity to appoint the POA. If the donor fails to understand the nature and effect of the POA he executed, this simply means that he has not fully grasp the consequences of granting these powers to the attorney, and as such that POA can be declared null and void.

There are many instances where a POA may prove quite useful. The most common of which is when an individual, e.g. landowner, is overseas and is unable to travel to Jamaica to conduct business in relation to property. Such business could include the selling and buying of property as well as evicting tenants. Another common instance where I have seen POA quite useful is when the donor is unable to make informed health decisions, and as such an attorney may be in a better position to make these decisions for them. This second use of POA, however, requires individuals being very proactive as the document will have to be executed before the donor lacks the mental capacity to appoint the attorney.

The POA must be in writing and should include the name, full address and occupation of both the donor and agent/attorney. Additionally, the document should outline the terms or powers which the donor intends to grant as well as the duration of the authority. Ordinarily as practitioners, we tend to list the powers and provide as much details about the specific power as we can. The POA should be dated and must be witnessed by a justice of the peace. POA should then be stamped at the Stamps Office (currently this fee is $500). In some instances, it is mandatory that the POA is recorded with the Registrar General's Department and in those cases, the fees charged are calculated based on word count as well as whether it is by way of standard versus express service.

It must be noted that a POA cannot be indefinite, as it can only last during the life of the donor, as such the authority to act on behalf of the donor expires upon his death. If the donor had specifically stated an end date or a duration period, then the POA is terminated upon the expiration of such duration or at such date.

Another way that the POA can be terminated is if the tasks granted are completed and the agreement therefore serves no further use or purpose. Lastly, the POA can also be terminated by the donor by cancelling the arrangement.

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Odane Marston is an attorney-at-law who specialises in conveyancing, administration, probate, recovery of possession, criminal litigation and divorce. He may be contacted via email Odanemarston@gmail.com or star@gleanerjm.com

This article is for general information purposes only and does not constitute legal advice.