Power of Attorney Act safeguards private property

The Power of Attorney (Amendment) Act of 2022 seeks to provide an extra layer of protection over private property, stifling the occurrences of fraudulent powers of attorney.

On Saturday’s edition of ‘Simplifying the Law’, State Counsel, Saabira Ali Hydaralie and Senior Legal Advisor Loretta Noel offered a comprehensive examination of the facets of the act and its varied applications.

A power of attorney is a legal authorisation that enables a person to represent or act on behalf of another person in private affairs, business, or some other legal matter. In this circumstance, the person who gives the authority is deemed the ‘principal’, ‘grantor’, or ‘donor’.

The amendment provides guidelines for executing a power of attorney. After the document is prepared by an attorney at law, the donor and donee would personally appear before a public notary, and provide two forms of identification.  

In cases where the donor is out of the country, the law stipulates that they may appear before a public notary or magistrate in the country in which he/she is and execute the power of attorney.

“With this process, an additional document needs to be provided, which is an affidavit of attesting witness, where the witness would attest to seeing the donor appear before the notary public and sign the document. Once everything has been verified, the documents have to be sent back to Guyana. They cannot be scanned and sent via email,” State Counsel Hydaralie explained.

These provisions seek to strengthen the legitimacy of the process.

With the amendments, strict penalties are attached for persons who dishonestly obtain a power of attorney, as well as for cases where an attorney dishonestly uses the power of attorney to obtain financial advantage for themselves or another person or to cause loss to the donor.

Importantly, an attorney who fails to comply with the requirements commits an offence and is liable on a summary conviction of five years and $5 million fine; and in the case of a corporate body, $10 million.

The act also provides for a wide scope of the types of power of attorney, such as general, limited and irrevocable power of attorney.

During his presentation of the amendments last year, Attorney General and Minister of Legal Affairs, Anil Nandlall, SC, highlighted the need for bolstering the process of granting power of attorney. He lamented that the power of attorney was often abused by the donee, and the amendments were put in place to protect the donor’s interest.