By Musyoki Kimanthi
Q: My father appointed someone to manage his property when we were young and this person has been doing so for the last 30 years. My father is now uncoordinated in thought owing to the usual afflictions of senility and this agent has now resorted to selling off several of my father’s property. We fired him from our family employ, but he won’t stop selling. How do we stop him?
A: It does appear that the old man appointed the agent through a grant of a power of attorney. A power of attorney in common law jurisdictions like ours, is an authorisation to act on someone else’s behalf in a legal or business matter. In other words, it is a document that allows someone to appoint another or an organisation to handle his affairs while he is unable or unavailable to do so. The person authorising the other to act is the principal, and the one authorised to act is the agent or attorney-in-fact.
Scope of appointment
For most purposes, the law requires that a power of attorney be in writing. An agent stands in a fiduciary position, meaning that he should be completely honest with and loyal to the principal in his dealings on matters touching on the reason for his appointment.
A power of attorney may be special, meaning that the agent is appointed to act on a limited or specified scope.
It may also be general, meaning that the agent is appointed to act on unlimited scope with regard to the principal’s legal or business matters. It may also be limited as to time.
Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes incapacitated because of physical or mental illness, unless the principal specifies that the power of attorney shall remain to be effective even if the principal becomes incapacitated, though such power must end when the grantor dies.
It is possible that a grantor may make a power of attorney irrevocable and this is normally stated in the document. It may also become irrevocable by operation of the law. Where a power of attorney has not been made irrevocable, the grantor may revoke it by simply telling the agent that it is revoked.
However, where the principal does not inform third parties of such revocation and it is reasonable for the third parties to rely upon the power of attorney being in force, the principal may still be bound by the acts of the agent, though the agent may also be held liable for such unauthorised acts.
Seeking court intervention
Going back to the question, one may need to establish what authority the agent is exercising and if a power of attorney, inform third parties that the grantor lacks capacity to ratify any acts done in purported exercise of that power.
He may also prevail upon the old man while he enjoys a lucid moment to revoke the power of attorney. But still, he may also seek an order of the court as an interested party to nullify any purported acts of the agent on grounds that such acts are fraudulent since the power of attorney relied upon is invalid.
