March 2, 2024

With Antwan Cotterell.

YOU may experience a time in your life when it is inconvenient or impractical to carry out your own affairs, whether it relates to your business, property, bank accounts or even a matter before the court. In some of these circumstances, executing a power of attorney might be a solution for you.

What is a power of attorney?

A power of attorney (“POA”) is a document which allows you to give the power you have to carry out an act to another person, and for that person to carry out the act on your behalf and in your name. When you are giving the power, you are referred to as the “donor” and the receiver of this power is called the “attorney”. The attorney is an attorney-in-fact, which is to be distinguished from an attorney-at-law who is someone trained and certified to practise as a lawyer in Jamaica pursuant to the Legal Profession Act.

It is important to note that in the context of a POA, the definition of “person” is not limited to natural persons (human beings) only but also includes “legal persons” such as companies. This means a company can give power to another company or to a human being to carry out acts on its behalf and in its name.

Reasons to execute a power of attorney

Although there are many reasons why persons execute a POA, generally it is usually out of necessity or convenience. A few circumstances when a POA is useful are where:

• you are living or travelling outside of Jamaica and need someone to carry out your affairs locally

• you are ill and physically incapable of carrying out certain acts yourself, provided that you have the mental capacity to give the power and ratify the actions of your attorney

• a company’s structure does not conveniently allow for the execution of certain documents and a POA can allow one person to execute documents on its behalf

• you wish to allow someone to make an application to the court on your behalf

• you require someone more competent or trained to carry out your affairs.

How a power of attorney works

In Jamaica, for a POA to be valid it must first be properly signed and witnessed, which means that it must be signed before a justice of the peace or before a notary public (if you are outside of Jamaica). The document must then be stamped at Tax Administration Jamaica and thereafter registered at the Island Records Office where it receives a unique registration number. If the registration process is not completed, then the attorney will not properly be able to act. For example, if the power is for transferring a motor vehicle on your behalf, Tax Administration Jamaica will not effect the transfer without seeing the unique registration number on the document.

POAs are often used by individuals and companies to deal with land. When giving power to deal with registered land, the POA needs specific language authorising the attorney to deal with land under or by virtue of the Registration of Titles Act. In this case the POA must not only be registered at the Island Records Office but also deposited at the Titles Office. If these steps have not been followed then the attorney may not be able carry out all the powers granted to him in relation to the land — for example, he would not be able effect a transfer of land to another person.

Important considerations

A POA is an especially important document as the attorney will be stepping in your shoes and carrying out acts which will normally bind the donor and fix the donor with liability for those acts performed by the attorney, and it can therefore have a great and lasting impact on your life and livelihood. Therefore, it is crucial that you carefully consider the person you appoint as well as the powers that you will give. You will need to ensure the powers he has been given are not too broad but also not too limited. It is recommended that you retain the services of an attorney-at-law who will be able oversee the entire process, from drafting the document to stamping and registration.

Antwan Cotterell is an associate at Myers, Fletcher & Gordon in the Property Department. He can be contacted via [email protected] or myersfletcher.com. This article is for informational purposes only and does not constitute legal advice.

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