The act and the way through: according to Byron
The Powers of Attorney Act 1996 came into operation on 1st August 1996 and effected changes in the law relating to powers of attorney.
A power of attorney is an authority given by one person (the donor) to another (the donee) to perform certain acts which the former has power to perform. It developed under common law (i.e. the ancient unwritten law and later judge-made law) and under statute law (notably the Conveyancing Acts of 1881 and 1882 and the Act of 1996).
At common law the power lapsed or was revoked automatically on the donor’s death, insanity, marriage or bankruptcy. The 1996 Act now provides for enduring powers of attorney which come into effect only on mental incapacity and are not defeated by it. At common law a power could also be revoked by the donor himself unless it was coupled with an interest (e.g. the interest of a mortgage). It could be released or disclaimed by the donee.
The instrument creating the power could contain a provision that it was irrevocable. Section 8 of the Conveyancing Act 1882 provided that if a power of attorney, given for valuable consideration (e.g. a mortgage or charge) is in the instrument creating the power expressed to be irrevocable then as far as a purchaser is concerned, the power shall not be revoked either by anything done by the donor without the concurrence of the donee or by the death, marriage, lunacy, unsoundness of mind or bankruptcy of the donor of the power.
7. Proof of the power
The original instrument creating the power is proof of same.
Section 48 of the Conveyancing Act 1881 provided for the deposit in the Central Office of the High Court of the instrument, creating the power of attorney and the issue of “office” copies of same by the Central Office.
The 1996 Act repeals section 48 and provides that a power may be proved by:-
(a) the original power or
(b) a copy of which is certified by the donor or by a solicitor to be a true copy of the original [it is immaterial how many removes or intermediate copies there are between the copy and the original or by what means (which may include facsimile transmission) the copy produced or any intermediate copy was made] or
(c) a copy which is attested by the Central office of the High Court if the original is deposited in that office. This attested copy may be a certified copy as at (ii), stamped or marked by the Central Office or it may be a copy prepared by the Central Office itself.
Rule 55 of the Land Registration Rules 2012 refers to production of the power, a certified or an attested copy. This applies to powers whenever executed.
8. Protection against fraud
There have been numerous instances in other jurisdictions, with similar title registration regimes, of fraudulent transfers and charges involving the use of forged powers of attorney. Henceforth it will be a requirement that a power of attorney be accompanied by a legal statement from the solicitor for the donee that they have reviewed and discussed the original signed and witnessed power with their client donee, and the clients have confirmed that they are the lawful party named in the document, that it is still in force and that they are acting within the scope of the power granted.
A certified copy or a Central Office attested copy of the power is acceptable proof of the power.
So what is the bottom line? Did the bank register the taking of the power of attorney in the Central Office? No, probably not!
Was the power of attorney document a stand alone document from any other documents. IE a separate piece of paper away from your loan agreement? Most probably not.
Did your solicitor advice you as to the seriousness of your action in regard to signing away your power of attorney? Probably not.
enduring powers of attorny