Powers of Attorney and

Drafting
1. Nature of Power of Attorney
• Power of attorney (PA)
• an instrument by which a person (donor)
may formally authorise another person
(donee) to act on his behalf or as his agent
on all matters (a general power) or for a
specific transaction or particular types of
transactions (a specific power)
1. Nature of Power of Attorney
• Reason?
• Example:
• Illness which has physically incapacitated
the donor
• The geographical positioning of donor
does not enable him to be physically
present to carry out the desired act
personally
2. Effect of power of attorney

• Where one person with legal capacity

(donor) wishes formally to authorise
another (donee) to act on his behalf (as
his agent), the donor may effect an
instrument (PA) to appoint the donee his
attorney under the power
2. Effect of power of attorney
• Power can be:
• General - one enabling the attorney to act
on all matters for the donor
• Specific - restricting the attorney to acting
on a specific transaction or particular types
of transactions
2. Effect of power of attorney
• Legal relationship between a donor and
his attorney: principal-agent

• Donee’s authority cannot exceed Donor’s

power to act on his own behalf
2. Effect of power of attorney
• Donee owes the donor duties of a
fiduciary character
• If a person is acting under a PA, he should
act in the name of the donor of the power
• If he is authorised to sue on the donor's
behalf, the action should be brought in the
donor's name
3. Formalities of execution of power of
attorney
• Powers of Attorney Act 1949, s 3(1)
• No instrument purporting to create a
power of attorney executed after the
commencement of the Powers of Attorney
Act 1949 has any validity to create such
power within Peninsular Malaysia unless it
is executed according to the statutory
formalities
3. Formalities of execution of power of
attorney
• Powers of Attorney Act 1949, s 3(1)(a)

• If executed within Peninsular Malaysia, the

instrument must be executed before, and
authenticated in the appropriate form by,
one of the following persons:
• (1) a magistrate;
• (2) a Justice of the Peace;
• (3) a Land Administrator;
• (4) a Notary Public;
3. Formalities of execution of power of
attorney
• (5) a Commissioner for Oaths;
• (6) an advocate and solicitor;
• (7) an officer, acting in the course of his
employment, of a company carrying on the
business of banking in Peninsular
Malaysia and incorporated by or under any
written law in force in Peninsular Malaysia
3. Formalities of execution of power of
attorney
• Powers of Attorney Act 1949, s 3(1)(b)

• If executed outside Peninsular Malaysia, the execution of

such instrument must be authenticated, in such form as
may be accepted by the registrar, by one of the following
persons:
• (a) a Notary Public;
• (b) a Commissioner for Oaths;
• (c) any judge;
• (d) a magistrate;
• (e) a British Consul or Vice-Consul;
• (f) a representative of Her Britannic Majesty;
3. Formalities of execution of power of
attorney
• (g) on and after Merdeka Day, any Consular
Officer of Malaysia;
• (h) in the case of an instrument executed in the
Kingdom of Saudi Arabia, the Malaysian
Pilgrimage Commissioner; or
• (i) in the case of an instrument executed in the
Republic of Singapore, an advocate and solicitor
of the Supreme Court of the Republic; or an
officer, acting in the course of his employment,
of a company carrying on the business of
banking in the Republic and incorporated by or
under any written law of the Republic
4. Deposit of Power of Attorney
• Powers of Attorney Act 1949, s 4

• Except as provided below, no instrument purporting to

create a power of attorney, after the commencement
of the Powers of Attorney Act 19491, has any validity
to create such power within Peninsular Malaysia until
a true copy of the instrument duly compared therewith
and marked by the Senior Assistant Registrar with the
words true copy, or, where the original instrument is
deposited in the registry of the Supreme Court in
Singapore, an office copy of such instrument, has
been deposited in the office of a Senior Assistant
Registrar
4. Deposit of Power of Attorney

• Object of registration:
• To give public notice of the creation of a
right or status and thereby minimise the
possibility of fraud and other unfortunate
occurrences
5. Duration of Power of Attorney

• Powers of Attorney Act 1949, s 5

• Revocation of Power of Attorney
• PA continues in force until:
• Notice in writing of revocation by the donor
or renunciation by the donee has been
deposited in every office in which the
office copy / true copy has been deposited
5. Duration of Power of Attorney

• Powers of Attorney Act 1949, s 5

• Revocation of Power of Attorney
• PA continues in force until:
• Donor/donee has died
• Donee has become of unsound mind
• Donor has been adjudged to be of
unsound mind
• A receiving order (RO) has been made
against donor in bankruptcy
6. Grant of Administration to Attorney

• s 29(a) PAA
• Where an executor appointed by a will is
absent from Malaysia, and there is no
other executor within Malaysia willing to
act, letters of administration with the will
annexed may be granted to a duly
authorised attorney of the absent
executor, limited until he obtains probate
for himself, and in the meantime to any
purpose to which the attorney’s authority is
limited
6. Grant of Administration to Attorney

• O 71 r 26 ROC 2012
• A duly authorised attorney can be
appointed under a power of attorney to
apply for the grant of representation
• Such grant will be for the absent person’s
use and benefit, limited until such person
shall obtain a grant or as the Registrar
directs
6. Grant of Administration to Attorney

• O 71 r 26 ROC 2012
• The attorney must annex a CTC of the PA
to the affidavit in support of the OS or
prove that he has deposited it or a certified
copy of it in the Registry of the High Court,
and where the person so entitled is an
executor, administration may not be
granted to his attorney without notice to
the other executors, if any, unless such
notice is dispensed with by the Registrar
7. Power of attorney by Trustee
• General rule: A trustee may not delegate his
functions and responsibilities to anyone else

• Statute authorises a trustee to grant a power of

attorney in certain circumstances
7. Power of attorney by Trustee
• Trustee Act 1949, s 30(1)
• A trustee intending to remain out of Malaysia for
a period exceeding 14 days may,
notwithstanding any rule of law or equity to the
contrary, by power of attorney, delegate to any
person (including a trust corporation) the
execution or exercise during his absence from
Malaysia of all or any trusts, powers and
discretions vested in him as such trustee, either
alone or jointly with any other person or persons
8. Lasting Powers of Attorney

• An instrument that allows a person to

appoint a surrogate or proxy who is
authorised to decide on his behalf on
health care matters should he lose the
ability to do so
• Takes effect only when the donor
becomes incompetent and no longer has
the capacity to decide for himself
Thank You !!