A power of attorney is a deed by which one party (the donor) gives another person (the attorney) the power to act on behalf of and in the name of the donor. It may be a general power or a power limited to certain defined purposes.
Powers of attorney are subject to statutory rules set out in the Powers of Attorney Act 1971 (as amended), the Enduring Powers of Attorney Act 1985 (which only applies to individuals and which is likely to be replaced by the Mental Capacity Act 2005 sometime in 2007), section 25 of the Trustee Act 1925 (as amended by the Trustee Delegation Act 1999) and the Trusts of Land and Appointment of Trustees Act 1996 (which apply to trustees).
An authority to execute a deed on behalf of another person must generally be given by deed i.e. a power of attorney.
The ability of a corporation to grant a power of attorney to execute a deed on its behalf depends on whether it has power to do so under its constitution. Most companies formed and registered under the Companies Acts will generally have an express power in their articles of association to make such an appointment.
Following Law Commission recommendations to clarify the formalities governing execution by an attorney, the RRO has made amendments to the Law of Property (Miscellaneous Provisions) Act 1989, the Companies Act 1985 and the Powers of Attorney Act 1971. The overall result of these amendments is that for instruments executed on or after 15 September 2005:
Where an individual signs a deed by way of execution (whether on his or her own behalf or on behalf of another) he or she must comply with the formalities contained in section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 by signing in the presence of a witness who attests the signature.
Where an individual is acting on behalf of a corporation, there had been confusion over whether the individual attorney should write his or her own name or that of the corporation for whom he or she is acting. Section 1(4) of the Law of Property (Miscellaneous Provisions) Act 1989 now provides expressly that “signing” the deed includes an individual signing the name of the person or party on whose behalf he or she executes the document, as well as signing his or her own name and section 1(2)(b) provides that an instrument may be a deed if validly executed as a deed in the name or on behalf of one or more of the parties. Section 7(1) and 7(1A) of the Powers of Attorney Act 1971 now allows an individual attorney executing a deed on behalf of a corporate donor to execute the deed as the donor would in accordance with section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989.
Where a company executes a deed (whether on its own behalf or on behalf of another) it must execute in accordance with section 36A of the Companies Act 1985 (either by use of the common seal, or by signature of a director and secretary or two directors) and the respective rebuttable presumptions of deemed execution in favour of a purchaser under sections 36A(6) of the Companies Act 1985 and section 74(1) of the Law of Property Act will apply where a company executes a document on behalf of another person (section 36A(7), Companies Act 1985 and section 74(1A), Law of Property Act 1925).