By robertsmith

• Jul 6, 2020
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by Barbara Ewoenam Afua Kukah Esq[1]

1. Introduction

If you've ever had to sign legal or financial documents on behalf of a relative or friend or make medical decisions concerning the health of an incapacitated person, likely, you did so as the lawful attorney of that person. The only legal means of acting as a lawful representative of another is if you have been issued with a Power of Attorney.  This article aims to shed light on provisions of the law relating to Powers of Attorney. Emphasis will be placed on the provisions of the Powers of Attorney Act 1998, Act 549 (hereinafter referred to as "Act 549") which is the enabling act for the regulation of for powers of attorney in Ghana; case law  and the common law.

2. What is a Power of Attorney?

A Power of Attorney (PoA) is a document which authorizes a person referred to as a “Donee or Attorney” to act on behalf of another person referred to as the “Donor or Principal”. The person who gives the authority is called the Donor or the Principal while the recipient is called the Donee or Attorney. The terms “Donor” and “Principal” will be used interchangeably in this article, as will the terms “Donee” and “Attorney”.

Act 549 does not define a PoA. However, other authorities do this. In the case of Hussey v. Edah, the Supreme Court per Hayfron-Benjamin JSC defines a PoA as

“a formal document by which one person, usually called the principal or donor, divests to another, usually called the attorney or donee, authority to represent him or act in his stead or for certain purposes spelt out in the document.”[2]

The eminent authors B.J Da Rocha and C.K Lodoh defined a PoA as

 “a document by which one person gives to another person authority to act on his behalf and in his name.”[3]

They further stated, “the practical purpose of a power of attorney is not only to invest the attorney with power to act for the principal, but also to provide him with a document defining the extent of his authority, which he can produce as evidence to third parties with whom he is to deal. The law authorizes such third parties to inspect this document.[4]”

Thus, a PoA serves three main functions. First, it creates the relationship between the Donor and the Donee. Secondly, it sets out the scope of the Donee's authority and finally serves as proof to third parties that the Donee indeed can contract on behalf of the Donor. Act 549 thus requires that a PoA be a written document that must be executed in the manner prescribed by the Act which shall be examined further in this article.

3. What a Power of Attorney is not

Having looked the definition of a PoA, it will be helpful to understand what it is not. First, a PoA is not a contract. The term “contract” is used to refer to an agreement, consisting of exchange of promises, which is recognized by law as giving rise to enforceable rights and obligations.[5] Sir Frederick Pollock also defines a contract as “a promise or set of promises which the law will enforce.”[6]Although a PoA has some elements that are like those of a contract, it is based more on a fiduciary duty than on a legal obligation. Also, consideration in the technical sense of the word is not provided, unless it can be argued that the consideration provided by the Donor is the authority given, while the Donee's consideration is the agreement to use the authority per the PoA.

More importantly, a PoA does not vest property in an Attorney who is dealing with the Principal’s authority. A Donee can therefore not become the owner of a Donor’s property by merely dealing with it as an attorney. A person who wishes to transfer property to another person would be better served by using an instrument such as a lease or an assignment which vests title in property rather than a PoA.

4. Parties

The parties to a Power of Attorney could be any of the following:

1. One individual to another[7]
2. One individual to two or more individuals
3. Two individuals to one individual[8]
4. A corporate body to an individual[9]
5. One corporate body to another.
6. An individual to an individual trustee
7. An individual to a trustee corporation[10]
8. Trustees to an individual[11]

Although Act 549 does not specifically state whether or not a company can execute a PoA, in practice this has been done as evidenced by the case of Naos Holdings Psc v. Ghana Commercial Bank[12]. In the United Kingdom, companies can grant some PoAs such as general/ordinary powers of attorney but not lasting powers of attorney. A partnership can also be a party to a PoA, as under section 12 of the Incorporated Private Partnership Act, 1962 (Act 152), a registered partnership can exercise all the powers of a natural person.

5. Uses of Power of Attorney

Da Rocha and Lodoh (supra) stated,

“by a power of attorney, the principal authorizes his attorney to be his alter ego, to stand in his shoes and do things which he should have done himself but cannot for one reason or the other” (emphasis mine).

The following are but a few of the reasons why PoAs are made:

1. To enable the Donee represent the Donor in a court action.
2. To enable the Donee sign legal documents for financial transactions on the Donor’s behalf.
3. The enable the Donee sell or buy property and other assets for the Donor.
4. To enable the Donee make healthcare related decisions on behalf of the Donor.
5. To enable the Donee make financial decisions for the Donor.
6. As a security to secure the performance of an obligation which the principal owes the Donee.
7. As security for a proprietary interest of the Donee.

It is important to note that while the uses of a PoA are many, there are some things a person cannot delegate by making a PoA.[13] These include:

1. 1. Making or revoking a will on behalf of the Donor. An Attorney cannot under any circumstance make a will or revoke an already existing will on behalf of a Principal. However, where an a person in the right frame of mind has made a will but cannot sign due to physical infirmity or some other reason, the Wills Act permits the testator to appoint another person to sign the will for the testator only under the direction of the testator and in the presence of both the testator and two or more witnesses[14].
   2. Contracting a marriage on behalf of or performing spousal duties for a Donor.
   3. Voting on behalf of the Donor. In Ghana, under order 25 of the Public Elections Regulations 2016 (C.I 94), an applicant must complete a proxy form as set out in Form 6 of the schedule to the C.I to appoint a proxy to vote on their behalf. Voting by proxy cannot be authorized by a PoA.
   4. Performing the professional rights and responsibilities (eg. as a priest, solicitor, captain of a vessel, lecturer, doctor, etc) of the donor.
   5. Taking examinations on behalf a Donor.
   6. Under the principle of nemo dat quod non habet, a Donor cannot give more power than he has. For instance, a person cannot by a PoA authorize another to sell a house which does not belong to the Donor. Thus the Donee’s authority is limited to what the Donor is capable of giving.

A PoA can also not be retrospective. A Donor cannot use a PoA to ratify actions that were taken by the Donee before the PoA was made even if those actions were taken on behalf of, and in the best interest of the Donor. In the case of Bucknor v. Essien[15] the respondent, on the authorization of a lawyer, visited a property in Cape Coast. The lawyer had received a letter asking him if he would act on behalf of two sisters who claimed to own the property. When the Respondent was sued for trespass by the occupant of the property, the Court held that he was liable and that his actions could not be ratified by the PoA which the lawyer subsequently received.

In the case of Standard Bank Offshore Trust Company Limited (Substituted by Dominion Corporate Trustees Limited) v. National Insurance Bank and Another[16]  the court said through Benin JSC,

“Let us take another instance where on appeal it comes to light that a person who sued as an attorney for the plaintiff did not in fact hold a power of attorney as at the date he issued the writ. He secured the power of attorney in the course of the trial. The issue of the attorney’s capacity to sue could be raised on appeal and the writ will be declared a nullity because it is fundamental to the authority to sue and this clothes the plaintiff with capacity to mount the action and this must be present before the writ is issued.”

6. Legal Requirements

Under Act 549, for a PoA to be valid, it must be signed by the Donor in the presence of one attesting witness. Should the Donor be unable to sign the document, it may be signed by a person authorized by the Donor in the presence of the Donor and attested by two witnesses.

In the case of Asante v. Maersk[17], a PoA was prepared in Kumasi, Ghana, where it was signed by a witness before being posted to the Plaintiff/Donor in Germany to sign. The Court held that a PoA must be signed in the presence of a witness who must then attest it. If the witness does not witness the Donor signing the document, it is invalid. Thus, the PoA made by the Plaintiff authorizing her mother to prosecute the action on her behalf could was invalid and could not be used as the basis of the action.

Again, in the case of Huseini v. Moru[18], the Plaintiff per his lawful attorney commenced an action against the defendant and won. On appeal to the Court of Appeal, it was held that as the PoA given to the Plaintiff’s attorney was not signed by a witness, it was void and conferred no authority on the attorney to commence the action. The Court of Appeal thus struck out not only the attorney’s evidence but the whole of the Plaintiff’s writ and case. On further appeal to the Supreme Court, the Supreme Court held that it was not only the Plaintiff’s action which was void but even the defendant’s counterclaim was invalid as the Plaintiff’s attorney could neither defend it nor had been properly been served with the counterclaim and supporting documents.

A PoA should also be registered and stamped at the Lands Valuation Division of the Lands Commission under the Stamp Duty Act, 2005, Act 689. It must be noted that a PoA will not be enforceable or be tendered in as evidence in a Ghanaian Court, unless it is stamped and registered under the Stamp Duty Act.

In the case of Gordon v. Essien[19], Abakah J held that the registration of a Power of Attorney gives it formal validity. He further noted that it is however not the registration of the PoA that gives it legal validity. Thus, a PoA takes effect from the date indicated on it and not from the date of registration.

A PoA should also be witnessed by a Commissioner for Oaths. It must be noted that the Commissioner for Oaths is separate from and is neither the same nor a substitute for a witness. In the case of Asante-Appiah v. Amponsah[20], the Plaintiff's attorney instituted an action on his behalf based on a PoA which had been signed by the Donor but not by a witness. The Supreme Court upheld the Court of Appeal’s holding that the PoA was invalid and should not have been admitted in evidence at the trial court. In the words of Brobbey JSC,

“it is patent on the instrument that no one signed as a witness. The Court of Appeal rightly rejected the argument of counsel for the appellant that the Commissioner for oath doubled as both the witness and the person before whom the power was executed. There is no legal or statutory basis for that argument. It would be observed that the provision is couched in imperative terms. In so far as the power of attorney in question was not signed by any witness, it was not valid.”

In the cases of Hussey v Edah and Asante-Appiah v. Amponsah (supra), the Supreme Court noted that if a PoA is to be used abroad or is prepared abroad, it must be authenticated by a notary public. Order 20 rule 15 of CI 47 provides that a document purporting to have fixed, impressed, or subscribed on it the seal or signature of a court, judge, notary public or person with authority to administer oaths in any country outside Ghana in testimony of an affidavit taken before that court, judge, notary public or person, shall be admitted in evidence without proof of the seal or signature of that court, judge, notary public or person^[21].

It is also generally required that the PoA state the names, addresses and identities of the parties, its duration, and a statement that the Donor agrees to ratify all acts performed by the Donee within the scope of the PoA.

This is particularly important because there are instances where to fulfil the mandate specified in a PoA, a Donee may have to take an action act not necessarily stated in the PoA document. In the case of Gordon v. Essien, the Plaintiff had been given a PoA authorizing her to collect rents in respect of the house in dispute. The Defendant argued that the PoA granted the plaintiff power to only collect rents and not to bring court actions in respect of the house. The court held that if a person is given the right to do anything, that right should extend to any additional thing necessary for the effective execution of that right.  Thus, contrary to the Defendant’s arguments, the Plaintiff bringing the court action to enable her to better collect the rent was a necessary consequential power.

7. Types of Powers of Attorney

Act 549 allows for two types of PoA – a general PoA which allows a Donee to deal with all affairs of the Donor without limitation and a limited or special PoA which specifies the ambit or scope of authority/power that the Donor is authorizing the Donee to exercise. This was aptly put in the case Dzanku v Afalenu[22]  where Justice Kingsley-Nyinah stated, “A power of attorney is a formal document whereby one person empowers another to stand in his stead, or to represent him, for certain specific purposes. It may either be a special power or else a general power. In the case of the later, the general power, the person unto whom the power is given, the Donee, becomes invested with full power to do such periodic acts as carrying on a business or collecting debts belonging to the Donor of the power. Where the power is special however, the Donor of the power confines the Donee to the doing of certain specified acts.” (emphasis mine).

Thus, a Donor may prepare a limited PoA to appoint someone to specifically manage his finances and another one for someone to make to healthcare decisions on his behalf. Another person may prepare a general PoA to authorize another to generally manage all his affairs including his health and finances.

A PoA which is given as security to secure the performance of an obligation which the Donor owes to the Donee is usually specific about how it is exercised and the scope of its authority. However, per section 2 of Act 549, the Donee must have a proprietary interest for the PoA to be effective. Or the Donor must owe the Donee an obligation before the PoA is created. This kind of PoA is generally irrevocable.

8. Invalid Powers of Attorney

Simply having a PoA does not mean a person has the authority to perform an act, as the PoA may be invalid. PoAs are terminated or become invalid for several reasons including the following:

1. It was not prepared following legal provisions.
2. The Donor died. When this happens, the law automatically revokes the PoA.
3. The Donor revoked the power.
4. The period of validity has expired.
5. The Donor ceases to have mental capacity. Like death of the Donor, the law automatically revokes the PoA when this happens.

Under Ghana law, it is a crime to act under an invalid PoA. In fact, according to section 3(3) of Act 549, a Donee who is found guilty of this can be punished in one of the following ways:

1. Payment of a fine of an amount between 100,000.00 cedis and a million cedis (GHC 10.00 and GHC 100.00); and/or
2. A term of imprisonment not exceeding six months.

The law takes this very seriously because for good or evil, a Donee has great power - access to the Donor’s money, properties and any other thing allowed under the document. In some cases, especially those concerning medical decisions, a Donee may have power over the very life of a Donor. Great harm can be occasioned if the Donee abuses this power.

On an individual basis, whether a Donee will be liable or not depends on whether he knew or ought to have known of the invalidity. A Donee who knowingly acts under an invalid PoA will be held liable for this. For a Donee who did not know, for instance, that the Donor was dead, had lost mental capacity or had revoked the PoA, the question that will be asked is, “in the circumstances, ought the Donee to have known?” Below are a few circumstances examining in what cases a Donee ought to have known;

• Example A

In the event a PoA is invalid because it was never validly granted, whether it can be said that the Donee ought to have known will depend on the circumstances. If it is because it was not properly attested as in the case of Asante-Appiah v. Amponsah (supra), the Donee cannot plead ignorance of the law. He ought to have known the provision of the law regarding this. In the words of John Selden,

“ignorance of the law avails no man, not that all men know the law, but because ‘tis an excuse every man will plead, and no man will know how to refute him.[23]”

• Example B

Revocation of the PoA is a slightly trickier issue. Unless it is expressly stated that the PoA is irrevocable, a Donor may revoke it at any time. A Donor can revoke a PoA without notifying the Donee. But if the Donor for instance published the revocation in the mass media, the Donee would be said to have been given sufficient notice. It must be noted that the revocation of a PoA inter vivos must be in writing executed by the Donor in the same way as the instrument creating the power.

If the duration of a PoA is specified, a donee is presumed to know when the period of validity has expired and will be held liable for acting under the invalid PoA.

• Example C

The death of a Donor also revokes a PoA. In the case of Essien v. Gordon (supra), the court noted that death automatically terminates an agency relationship because the concept of authority demands a continuing consent of the principal to the agent’s act on his behalf. With the death of the Principal the consent would not continue because the mind from which it issued had to exist. Whether the Donee knew or ought to have known about the Donor’s death is a factual question to be answered based on the circumstances of the case. In the Hussey v. Edah case (supra), the Plaintiff sued for a declaration of title to family land claiming that based on two PoAs granted to him by his deceased family head and two other relatives, he had succeeded the head of family. The Supreme Court on appeal to it held that all the Donors of the PoAs having died before suit was commenced, the PoAs had been terminated and no action could be commenced based on those documents.

What happens in cases where there is more than one Donor and one of them dies? In the case of Dzanku v. Afalenu (supra), the Plaintiff was given a PoA by two persons who authorized him to prosecute and defend suits relating to family land. One of the Donors had died by the time the Plaintiff/Donee instituted the present action.  The court held that as long as one Donor was still alive, the death of the other Donor could not invalidate the PoA.

• Example D

Mental capacity refers to a person’s ability to make decisions for themselves, having sufficient understanding and memory to comprehend in a general way the decisions they make. It may be lost through illness, a mental health problem, or dementia. Once lost by a Donor, a PoA becomes invalid. However, unlike death, it can be difficult or almost impossible to prove this. A Donee’s liability will depend on whether on the facts, the Donee knew or ought to have known of the Donor’s mental incapacity.

Section 3(1) of Act 549 provides that “a donee of a power of attorney who acts under the power at a time when it has been revoked shall not incur any liability to any person if at that time he did not know that the power had been revoked.” Thus if it is proven on the facts that the Donee did not know and could not have known that a PoA has been revoked or invalidated, there will be no liability. But the Donee must have been acting under the PoA, not ultra vires it. Thus if the Donee goes beyond the authority outlined in the PoA, the Donee will be liable.

A Donee who does not know of the revocation and acted within the scope of authority outlined in the document, is truly free from liability whether criminal or civil, to the Donor or any other person.

9. How Can Parties to a PoA Protect Themselves?

Donors can protect themselves by stating clearly on a PoA the names and addresses of the parties, the date it is created, its duration, and the scope of the Donee’s authority. A Donor who decides to revoke the power should do so in clear terms in writing in the same manner as the original PoA and promptly bring it to the attention of the Donee. This allows a Donor to avoid liability for acts of the Donee which are done ultra vires or in abuse of the PoA.

Donees can protect themselves by acting under the terms of the document and not exceeding their powers under the document, regularly reporting to the Donor, acting with due skill and care and not putting themselves in a position where their interests conflict with those of the Donor. However, as was held in the case of Gordon v. Essien (supra), a Donee will not to be held to have acted ultra vires if the action taken by the Donee was a necessary consequential power to enable the Donor to properly fulfil the PoA even if that act was not specifically mentioned the in the PoA.

Donees must also not accept secret gain or commission as a result of their position as Donee. Donees are additionally required to act in the name of Donor. In the case of Ayisi v. Banda[24], the court held that an agent cannot maintain an action in his name on any contract made by him as such agent whether or not the principal is named or unnamed.

Finally, Donees should not delegate their powers under the PoA. This springs from the delegatus non potest delegare principle which is translated into English as "one to whom power is delegated cannot further himself delegate that power". This maxim regulates the extent to which a person who has been entrusted with authority to act can further delegate the performance of that act to another. This is because of the presumption that the naming of a person to exercise some discretion or perform an act indicates that he was deliberately selected to because of some aptitude peculiar to himself[25] or because of some skill or judgment possessed by the Donee which the Donor places confidence in[26]. Because a PoA is a trust or confidence reposed personally in the Donee, the Donee cannot delegate those duties to another person unless the PoA specifically permits the Donee to delegate. It cannot be assigned to a stranger whose ability and integrity might not be known to the principal.[27] This does not mean delegation is impossible in a PoA. A Donee may delegate authority under a PoA if the PoA expressly authorizes the Donee to do so. A Donee may also appoint persons to assist him to perform his duties. This is acceptable and not regarded as delegation of authority.

10. How Can Third Parties Protect Themselves?

Due to the nature of their businesses, many institutions such as banks and courts deal with individuals who purport to act on behalf of others. The law authorizes third parties to inspect any PoA presented by a person who purports to act on behalf of another[28]. A Donor is however, usually not liable for the actions of a Donee who acts ultra vires or under an invalid PoA. It is thus essential for third parties to protect themselves when dealing with persons with PoAs. That said, the following will be a useful guide to third parties when inspecting documents:

1. What are the names of the Donor and the Donee? Do they match with the names the parties present or the names in your records? If not, do they have documents proving they are the same people (eg. Properly attested statutory declaration of change of name or a copy of the gazette publishing a change of name and valid national identity cards)

2. Was the document properly attested? Has it been witnessed by a commissioner for oaths or a notary public? Has it been registered and stamped at the Lands Commission?

3. When was the PoA prepared? Was a duration specified? If so, has it expired or not? Take note that under section 5 of Act 549, PoAs prepared by trustees cannot exceed twelve months.

4. What is the reason for which it was given? Section 3(4) of Act 549 allows third parties to assume that a PoA given as security by the Donor is irrevocable.

5. What is the scope of the Donee’s authority? Remember, a Donor is not liable for a Donee’s ultra vires acts.

6. Is the Donor still alive and possessing the requisite mental capacity? Depending on the circumstances, third parties may have to confirm this by phone call, email or letter from the Donor.

11. Conclusion

As long as powers of attorney are executed and used under the law, they are very useful instruments that help people accomplish a lot without necessarily being physically present or doing it themselves. It is however the opinion of the author that Act 549 may have to be reviewed to make the fines mentioned in section 3(3) better suited to present day conditions as the change in currency and other economic conditions have led to a devaluation of the prescribed amounts which in turn makes the sanction lose its deterrent power.

Image credit: Cytonn Photograpy on Unsplash

Footnotes

[1] The author is an Associate at Robert Smith and Adelaide Law, a boutique law firm in Accra, Ghana.

[2] [1992-93] Part 4, GBR 1703 at 1714

[3] Ghana Land Law and Conveyancing, Da Rocha and Lodoh, page 145

[4] Da Rocha and Lodoh, Ghana Land Law and Conveyancing, pg 145

[5] Christine Dowuona Hammond, The Law of Contract in Ghana, page 1

[6] Sir Frederick Pollock, (1902) Principles of Contract: A Treatise on the General Principles Concerning the Validity of Agreements in the Law of England, 7^th ed., London: Stevens & Sons Limited, page 1.

[7] Asante-Appiah v Amponsah [2009] SCGLR 90

[8] Dzanku v. Afalenu [1968] GLR 792-794

[9] Barrows v. Chief Registrar [1977] CLY 305

[10] Sowman v David Samuel Trust Ltd [1978] 1 WLR 22

[11] Powers of Attorney Act, 1998 (Act 549), section 5(1)

[12] (2005-2006) SCGLR 407

[13] Da Rocha and Lodoh, Ghana Land Law and Conveyancing, page 149

[14] Wills Act, 1971, Act 360, sections 2(1) and 4

[15] [1963] 1 GLR 426

[16] Unreported case, Civil Appeal NO. J4/63/2016

[17]  [2003-2005] 2 GLR 43 - 58

[18] [2013-2014] 1 SCGLR 363

[19] [1992] 1 GLR 232-241

[20]  (2009) SCGLR 90

[21] The High Court (Civil Procedure) Rules, 2004, CI 47

[22] [1968] GLR 792 - 794

[23] Table Talk, 1689

[24] [2013-2014] SCGLR 1259, see also Ghana Rubber Products Ltd. v Criterion[1984-86] 2 GLR 56-78

[25] John Willis, Canadian Bar Review, Volume XXI, page 257

[26] Henry Irving Gordon, The Power of an Agent to Delegate His Authority, 1892, Cornell Law Library, page 2

[27] Law Times Journal, http://lawtimesjournal.in/delegata-potesta-non-potest-delegari/

[28] Section 37(2)(a) of the Conveyancing Act, 1973, NRCD 175