What is a Power of Attorney (POA)?

Power of Attorney (POA) is a formal instrument by which one person empowers another to represent him or act in his behalf in many matters including transactions for sale of land, registration of intellectual property, filing of lawsuits, signing off on documents, and opening of a bank account among many others.

What are the requirements for a power of attorney in Kenya?

1. The full name and address of the donor (the person giving the POA) and the appointed agent must be stated in the POA.

2. The POA must be executed in accordance with the requirements of the law. It must be signed by the donor and the signature must be witnessed by an individual who is not party to the power of attorney.

3. Powers of Attorney (POA) must be stamped (payment of stamp duty) and registered in Kenya in the Register of Powers of Attorney under the Registration of Documents Act.

4. A Power of Attorney can be given to a company i.e. a company can be appointed as an agent and requisite powers donated to it. If the POA has been issued by a company, a copy of the Memorandum and Articles of Association of the company and a company resolution authorizing the POA must be presented.

What are the different forms of the power of attorney?

There are basically three forms of power of attorney, and these include; general, special and irrevocable power of attorney.

1. General power of attorney has a broad mandate that gives an agent a lot of power to handle the affairs of a donor. The agent or the person designated to act on behalf of the principal is charged with handling several tasks which include entering into contractual relationships on the principal’s behalf, issues on health or finance, or entering into contractual relationships.

2. Special Power of Attorney gives an agent the power to act on your behalf, but only for specific purposes. For example, a limited power of attorney can allow someone to cash checks for you. However, this person won’t be able to access or manage your finances fully.

3. Irrevocable power of attorney cannot be revoked/terminated unless both the donor and the agent agree to the arrangement. Under this form of power of attorney, some form of interest is conveyed from the donor to the agent. This means that the power of attorney is coupled with an interest in the subject matter. This can be created in a situation where the person being represented is; a minor or a mentally incapacitated person.

What are the requirements for a foreign power of attorney in Kenya?

1. For a foreign Power of Attorney to have authority in Kenya, it must be registered here in Kenya under the Register of Documents. This is required even if the POA is registered in its country of origin.

2. A Notary Public stamp from the embassy of the POA’s country of origin in Kenya will be required to verify the authenticity of the POA (any other form of legalization of the POA is acceptable). It is also important to establish that it was procedurally and duly registered in its country of origin.

3. If the POA is in another language, a Certificate from the country’s embassy verifying the interpretation must be obtained and presented.

What is revocation of power of attorney?

Revocation of Power of Attorney is written confirmation that a principal (the person who appointed power in a Power of Attorney) no longer wants or needs their agent (the person who was appointed power in a Power of Attorney to act on their behalf.

To cancel a Power of Attorney, the principal can create a document called Notice of Revocation of Power of Attorney (Form LRA 8). In addition, if the Power of Attorney was registered (which means it was filed with the Land Registry), the revocation must also be registered.

When should I revoke my Power of Attorney?

There are several reasons why someone would want to cancel their Power of Attorney:

1. The Power of Attorney was created for a specific purpose. If that specific purpose has been dispensed. In both circumstances, the POA is no longer needed and should be cancelled to stop the agent from making decisions in the future.

2. The agent is not good enough to act for the principal: For example, if it is discovered that the attorney-in-fact is dishonest, the principal may decide to revoke the Power of Attorney and appoint someone to act on their behalf.

3. Incapacity of the agent: this may be due to physical or mental barriers. For example, if the agent moves to another country, it may not be practical or possible for them to keep acting for the principal.

The principal wishes to appoint someone else as their agent. For instance, if your agent passes away, you will need to appoint someone new to handle your affairs.

How we can help

At CM SME Club, we provide valuable legal advice and guide businesses on the redundancy procedures including advising on the obligations of employers and conducting legal risks assessments to shield you from claims of unfair dismissal or discrimination. We will also help you come up with clear and comprehensive redundancy policies and procedures for your company. Get in touch with us via email or call +254 745 342 125.

Published on Aug. 22, 2024, 1:10 p.m.