How To Create A Valid Power Of Attorney In Ghana

In Ghana, Powers of Attorney are governed by the Power of Attorney Act 1998, Act 549.

A power of attorney may be defined as a document authorising a person to act on behalf of another person. The person authorising another to act on his behalf is known as the “principal or the “donor” and the person authorized to act on behalf of another person is known as the “attorney” or the “donee”. The effect of a power of Attorney is to confer power on a donee or in the case of more than one donee, the authority to perform acts which can lawfully be done by a donee or attorney. A power of attorney can be created for any purpose including for security purposes. A power of attorney is revocable at any time.

Eligible Persons

Any person can be authorized to act for and on behalf of another. They may include individuals, corporate bodies, trustees, trustee corporation just to mention a few.

Creating a Valid Power of Attorney

The law enumerates the requirements for creating a valid power of attorney. Under the law, the document creating the power of attorney shall be signed by the donor in the presence of one witness who shall also sign the document. However, the law provides that where the document is signed by the donee, there shall be two (2) witnesses present who shall sign the document. The donee may sign the document with his own signature and do any other thing in his own name if authorized by the donor and the document executed and thing done shall be as effective as if done by the donor of the power.

Revocation of a Power of Attorney Persons

Under the law, a power of attorney is revocable at any time. In the case of creating a Power of attorney to be used as a security of a proprietary interest for the done (i.e where the donee has a partial or total interest in property, the law provides that it may be expressed as irrevocable. However, where a power of attorney is given to a donee to secure an interest or to fulfill an obligation owed the donee, that power shall not be revoked without the consent of the donee by the death, incapacity or bankruptcy of the donor or, if the donor is a body corporate by its winding up or dissolution, until the purpose for which it was given has been completed.

Delegation of a Power of Attorney

Under the law, a power of attorney shall not be delegated without the consent of the donor or principal. In the case of a trustee having a power of attorney, the law provides that a trustee may delegate by power of attorney for a period of not more than twelve months. However, the trustee is required by law within seven (7) days to give a written notice to the donee of the date on which the power comes into operation; its duration, the donee of the power, the reason why the power is given and the trusts, powers and discretion delegated to each person who has power to appoint a new trustee and to each of the other trustees. According to the law, a donee may exercise any of the powers conferred on the donor as trustee by statute or by the instrument creating the trust.

It is worthy to note that a failure to comply does not invalidate any act done by the donee by virtue of the delegation. Also, a donee deriving power by virtue of a delegation by a trustee cannot delegate that power.

Liability

Although a trustee may delegate power given under a power of attorney, the donor(trustee) is liable for acts or defaults of the donee as if they were acts of the donor. According to Act 549, where a donee acts under a power at a time when it has been revoked, he shall not incur any liability if he had no knowledge of the revocation and all acts done shall be held as valid as if the power was in existence at the time of the transaction.

However, where the donee has knowledge that the power has been revoked but transacts business to the detriment of the donor, the donee shall be, the donee commits an offence and is liable on summary conviction to a fine of not less than ¢100,000.00 and not more than ¢1 million, or imprisonment for a term not exceeding 6 months.

AUTHOR: AB Lexmall & Associates