BC00022

[2020] 1 LNS(A) lxxv Legal Network Series 1
THE POWER OF ATTORNEY: AN INTRODUCTION*
By
Andrew Das Solomon**
Abstract
How do you prepare a Power of Attorney (PA)? Does a PA have to be

registered? Must a PA be stamped? How do I know if a PA is valid…these
are questions I regularly face from friends in practice; even from those
who have completed considerable years in legal practice. This article
attempts to answer some of these questions while providing a practical
guide to the various matters to be considered when dealing with a PA.
After a brief background, the article looks at the Powers of Attorney Act
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which is the principal act relating to the PA. It then proceeds to take a
step-by-step look at the various parts involved in preparing a PA (from
taking the client’s instructions right up to its revocation) with emphasis on
related provisions of the Powers of Attorney Act and how they have been
interpreted by the Courts. Where appropriate, suggestions on good
practice has been added. The article ends with a cursory review of other
legislation which has provisions relating to a PA. A checklist summarising
the various steps and matters to be considered when preparing a PA is
attached at the end for ease of future reference.
Introduction
The Power of Attorney (‘PA’) is a frequently encountered instrument in

legal practice. It appears mostly in conveyancing but can also be found in
litigation situations. When asked to prepare a PA, a solicitor will find little
guidance and, in most times, turn to precedents. By adopting this method,
the solicitor may draft the instrument without understanding the actual
formalities required to make a PA valid in law, while running the risk of
retaining defects that may be present in an inadequately prepared
precedent.
Part 1
Background to the PA
A PA is an instrument by which one person (called the ‘Donor’) appoints

another person (called the ‘Donee’) to formally act for the Donor
according to the provisions specified in the PA itself. It is frequently used
in conveyancing practice especially in transactions relating to land and
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loan documents where financial institutions lend money to borrowers.
As a species, the PA falls under the area of agency which forms part of the
law of contract. In a PA, the Donor is the principal and the Donee, an
agent. As such, principles of the law of contract especially that of principal
and agent, i.e. the law of agency, will be applicable when issues arise
regarding the validity and interpretation of a PA.
A PA can be granted by both natural persons as well as companies. This

can be seen in the decision of Zainun Ali FCJ in Lim Eng Chuan Sdn Bhd v
United Malayan Banking Corporation & Anor where Her Ladyship stated
as follows:
“…, it is clear that a company is competent to create a power of
attorney, provided of course, there is scrupulous compliance with the
form of authentication as has been done in the PA herein.” [1]
Note, however, that not all PA’s are ‘stand-alone’ instruments. A PA may
appear only as a clause in a document. This is common in loan security
documents which contains a PA clause by which a borrower authorises a
financial institution to sign all documents (on behalf of the borrower) to
exercise certain rights, including the right to sell the borrower’s property,
if the borrower defaults on the agreed payment terms.
Part 2
The Powers of Attorney Act 1949
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The principal statutory legislation in West Malaysia in respect of the PA is
the Powers of Attorney Act 1949 (Act 424) (‘the Act’). Section 1(2) of the
Act states that it “shall apply to the States of West Malaysia only”. In the
circumstances the contents of this article are confined only to matters
concerning the PA in West Malaysia.
The Act itself is rather brief with only fifteen (15) main sections and two
(2) schedules. It offers little guidance on what a PA should contain.
Instead, it focuses more on the legal formalities to make a PA valid as well
as administrative matters relating to the duties of Court officials who
register and maintain records of the instrument.
Thus, when preparing a PA, it is left to the solicitor’s legal drafting skills
to ensure that the client’s instructions are adequately covered while
ensuring that the legal formalities stipulated by the Act are also observed.
For the latter, a PA that does not strictly comply with some provisions
specified in the Act may be held as invalid by the Courts rendering it unfit
for its purpose with the dire prospect of a claim in negligence against the
solicitor who prepared the instrument.
Part 3
Preparing a PA
This is a crucial part when preparing a PA. It involves two (2) main stages
where different considerations come into play. A chronological breakdown
of the actions to be taken during each of these stages and the matters to be
considered in each of them are as follows:
Stage 1: Taking Instructions from the client
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This first stage is where a solicitor should make all effort to clearly
ascertain the requirements of the Donor and to determine whether a PA is
suitable for the Donor’s purposes.
For practical reasons, it is best to first consider whether the Donor is

legally capable of granting a PA. This would involve a consideration of
matters like:
 whether the Donor has reached the age of majority,
 whether the Donor is of sound mind; and
 whether the Donor is signing the PA on a free-will basis

without any coercion by any other party.
It is also prudent to consider whether the Donor can legally grant a PA for
the proposed situation. As an example, an Administrator of the estate of a
deceased person is not capable of granting a PA to deal with the
deceased’s estate until the Administrator has obtained Letters Of
Administration.
It is also important at this stage to determine whether the PA is to be given

for a general purpose or a specific purpose. The difference between these
is as follows:
The General PA
An example of a situation where a general PA may be suitable is

where a Donor who owns both moveable and immoveable properties
has to leave the country and needs somebody to look after his
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properties. For this purpose, the Donor may need to grant a PA to a
Donee. As the powers needed to look after all the Donor’s
properties may be varied, especially when it is difficult to ascertain
the legal situations that may arise in the future, it is best that the PA
be drafted in broad terms and include a wide range of powers so as
to adequately arm the Donee. Standard, pre-printed forms for a
general PA are still available showing how a general PA may be
drafted to make it applicable for a wide range of legal situations.
The Specific PA
A specific PA is used where the Donor may only want to grant a

limited power to the Donee for a situation, the scope of which can be
determined by the Donor at the time the PA is executed. Examples of
this are the power to collect rent for the Donor’s property, execute
the prescribed instruments to sell and transfer the Donor’s
immovable property, or to apply for a particular license or approval
relating to the use of a property.
Lastly, it is important to obtain instructions from the client on whether the

instrument is to be revocable or irrevocable as a PA may be granted on
either term. Where it is the former, it can be revoked by the Donor at any
time without the consent of the Donee provided that the revocation is done
in a manner which complies with Section 5 of the Act. Where it is the
latter, the Donor cannot revoke the PA unless the consent of the Donee has
been obtained. What makes a PA revocable or irrevocable can be seen in
the following sections of the Act:
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Section 6 (Powers of Attorney given for valuable consideration)
This section, inter alia, provides that where a PA is given for

valuable consideration and expressed to be irrevocable in the PA
itself, then in favour of a purchaser, the PA shall not be revoked at
any time:
(i) without the concurrence of the Donee; or
(ii) by the death, marriage, metal disorder, unsoundness of

mind, or bankruptcy of the Donor.
Hence, where a PA is given for valuable consideration, it cannot be

revoked unilaterally as seen in the decision of Abdul Malik Ishak
JCA in Cergas Teas Sdn Bhd (In Liquidation) v. SAP Holdings Sdn
Bhd where his Lordship held as follows:
“It is trite that the irrevocable PA cannot be revoked
unilaterally.” [2]
Section 7 (Powers of Attorney expressed to be irrevocable for a

fixed time)
This section, inter alia, provides that whether or not a PA is given

for valuable consideration, if it is expressed to be irrevocable for a
fixed period of time in the PA itself, then in favour of a purchaser,
the PA shall not be revoked at any time:
(i) without the concurrence of the Donee; or
(ii) by the death, marriage, metal disorder, unsoundness of

mind, or bankruptcy of the Donor.
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The above two sections thus show that a PA can be made irrevocable
by the giving of valuable consideration or by stating it to be granted
for a fixed period of time, either of which must be stated in the
instrument itself.
Stage 2: Drafting the PA
This stage solely involves the knowledge and drafting skills of the solicitor
appointed to prepare the instrument. As in other legal instruments,
structure, content and accuracy must be ensured to avoid challenges (by
third parties) or complaints (by the client). A well-structured instrument
will be of immense assistance especially if it is required to be construed by
the Court. This should take into consideration the following:
Language of the PA
The PA may be drafted in either Bahasa Malaysia or English.

Whichever language is used, it is essential that details of names and
properties (where it is specifically mentioned) are accurately
described, failing which, the PA may be held invalid and fail its
purpose. Land Registries / Land Offices are very particular about the
details of the land to be stated in the PA and thus, it may be prudent
to ensure that correct details are recorded. Note also, Section 4(2) of
the Act which states that where a PA is drafted in a language other
than Bahasa Malaysia or English, a translation, certified by an
interpreter attached to the Court must also be deposited with the
Court.
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Heading
This is the title of the instrument and is normally stated as “Power of

Attorney”.
Appointment Clause
This clause should state clearly and accurately the relevant details
(names, NRIC numbers/company registration numbers/and
addresses) of the Donor and the Donee. It should also expressly state
the appointment of the Donee as the Attorney of the Donor.
Recitals
Recitals are important as it aids a Court when construing the ambit

of a PA. Is importance can be seen in the decision of Abdul Malik
Ishak J (as he was then) in the case of Wan Salimah Wan Jaafar v.
Mahmood Omar; Anim Abdul Aziz (intervener) where his Lordship
quoted the following sentence from Rooke v. Kensignton [1885]:
“It is of utmost importance that in construing a power of

attorney that regard should be had to the recitals which would
show the general object and control of the general terms as an
operative part of the deed.” [3]
Body
This is the main part of the PA. It should show the object of the
instrument and the various powers which the Donor grants to the
Donee, including its limits, if any. This part must be carefully
drafted to ensure that the powers which the Donor wishes to grant to
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the Donee are clearly expressed without any ambiguity. The need
for clarity of expression in a PA can be seen in the decision of
Suffian FJ (as he was then) in Subramanian Pillay v. Sudarammal
where his Lordship quoted the following lines from the Privy
Council case of Bryant, Powis and Bryant v. La Banque du Peuple:
"... powers of attorney are to be construed strictly - that is to

say, that where an act purporting to be done under a power of
attorney is challenged as being in excess of the authority
conferred by the power, it is necessary to shew that on a fair
construction of the whole instrument the authority in question
is to be found within the four corners of the instrument, either
in express terms or by necessary implication. … .
Further down, at the same page, His Lordship observed as follows:
“The power is not a home-made document, it is couched in legal

language, and, if the intention was to authorise the attorney to
borrow without security, the draftsman should have had little
difficulty in making that intention clear." [4]
This observation emphasises the standard of expression that the Court

expects from a solicitor who prepares a PA.
Ratification Clause
This is a rather standard clause by which the Donor agrees to ratify

and confirm all acts of the Donee pursuant to the powers granted
under the PA.
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Execution and Authentication
This is dealt with in more detail in Part 4 below.
Part 4
Execution and Authentication of the PA
A PA must be executed by the Donor and authenticated by two prescribed

persons. There is no necessity for the PA to be executed by the Donee as
well.
The Act does not specify that the signature of the Donor must be witnessed
or attested. Instead, Section 3(2) provides that:
“Notwithstanding anything to the contrary contained in any written
law in force at the commencement of this Act, an instrument
purporting to create a power of attorney duly executed and
authenticated in accordance with this section shall be deemed to be
properly and validly executed and attested for all or any of the
purposes for which a power of attorney may be used under any such
written law”.
In relation to this see the decision of Hamid Sultan Abu Bakar, JCA in
Kenaga Investment Bank Berhad v. Swee Joo Berhd & 9 Ors where his
Lordship quoted the following statement from RHB Bank Berhad v.
Dominance Timer Industries Sdn Bhd & Ors to show the relationship
between the words ‘attesting’ and ‘witnessing’:
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“… At times, the word attested is loosely used to describe witnessing
of signatures. Document need to be attested when the law requires it
to be do so.” [5]
Further down (at page 57, paragraph 49 and 50) the learned Judge stated as
follows:
“Where a document needs to be attested according to the provisions

of the law, the law will provide to use the word ‘attest’ or to be
attested, etc. … . In the instant case, there is no requirement for
attestation under section 3 of the PAA 1949. The only requirement is
authentication.”
Section 3 of the Act provides that for a PA to be valid within Peninsular

Malaysia it must be authenticated only by certain prescribed persons
identified in the Act itself. Note that the word ‘authentication’ in this
Section does not refer to attesting or witnessing. It has a special
significance as can be seen from the following explanation:
“Authentication is not merely attestation but something more. It

means that the person authenticating has assured himself of the
identity of the person who has signed the instrument as well as the
fact of execution.” [6]
The prescribed persons authorised to authenticate a PA in the Act depends

on whether the PA is executed within or outside the Peninsular. Details of
these are as follows:
Where the PA is executed within West Malaysia
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The prescribed persons according to Section 3(1)(a) are:
 a Magistrate;
 a Justice of Peace;
 a Land Administrator;
 a Notary Public;
 a Commissioner for Oaths;
 an Advocate & Solicitor; or
 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.
Where the PA is executed outside West Malaysia
The prescribed persons according to Section 3(1)(b) are:
• a Notary Public;
• a Commissioner for Oaths;
• any Judge;
• a Magistrate;
• a British Consul or Vice-Consul;
•
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a representative of Her Britannic Majesty;
on and after Merdeka Day, any Consular Officer of Malaysia;
• in the case of an instrument executed in the Kingdom of Saudi

Arabia, the Malaysian Pilgrimage Commissioner; or,
• 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.
Generally, or cases where a PA needs to be executed outside West
Malaysia, it may be less expensive to have the authentication done by
a Malaysian Consular Officer as compared to a Notary Public.
Note also that apart from prescribing only certain persons, the Act also
prescribes a specific format to be used for the authentication. For an
individual, it is Form I of the First Schedule. In the case of a company or
corporation, it is Form II of the First Schedule.
It is imperative that a PA is authenticated according to the requirements of

Section 3. This can be seen from the decision of Abdul Malik Ishak J (as
he was then) in the case of Wan Salimah Wan Jaafar v. Mahmood Omar;
Anim Abdul Aziz (intervener) where the learned Judge stated as follows:
“It is apparent that the validity of a power of attorney is dependent
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on its execution before certain named personalities and it must be
authenticated in the appropriate form following what has been set
out in the First Schedule thereto. A power of attorney created in
some other way other than what is stated in s. 3(1)(a) of the Powers
of Attorney Act 1949 (Revised 1990) must be struck down as null and
void and of no effect.” [7]
This was emphasised by the Federal Court in Letchumanan Chettiar

Alagappan (As Executor to SL Alameloo Achi (Deceased) & Anor v.
Secure Plantation Sdn Bhd where his Lordship Jeffery Tan FCJ stated as
follows:
“Section 3(2) of the Act provides that in order to have validity, a

power of attorney must have a form of authentication, which must be
‘meticulously complied with’ (see Lim Eng Chuan v. United Malayan
Banking Corp & Anor) …. The want of a form of authentication
‘would render the instrument invalid’…. [8]
Part 5
Stamping the PA
Section 4 of the Stamp Act 1949 (Act 378) provides that any instrument
specified in its First Schedule shall be chargeable with stamp duty. Item 59
of the First Schedule to Act 378 provides that a PA is chargeable with
stamp duty at RM10-00. Note that if the PA appears as part of a document
(as in loan security documents), it must be stamped separately in addition
to the document itself.
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Part 6
Registering the PA
Section 4(1) of the Act provides that for a PA to be valid within Peninsular
Malaysia, a copy has to be deposited into Court and marked as a ‘true
copy’. In practice this is commonly referred to as registering the PA. The
importance of this section can be seen in the case of Wan Salimah Wan
Jaafar v. Mahmood Omar; Anim Abdul Aziz (intervener) where, at page
513, the Court referred to a PA and ruled that:
“to be valid … (the PA) must strictly comply with ss 4 and 5 of the
Powers of Attorney Act 1949 (Revised 1990)……….” [9]
Previously, this was done by physically delivering the duly stamped

original and a copy of the PA to the High Court together with the requisite
fees. The Registrar will seal and note a registration number on the last
page of the PA and return the original while the copy is retained as an
office copy. The registration number serves as the identification of the
instrument for purposes of searches at the Court registry.
Presently, a PA may be registered through the e-filing system. A clear

explanation of this procedure may be obtained from the Official Portal of
the Chief Registrar, Federal Court of Malaysia at
http://www.kehakiman.gov.my.
Note that mere registration of a PA may not make it a valid instrument. In

practice, care must be taken to ensure that all other legal formalities have
been complied before deciding that a PA is valid. For those who take a
contrary view the following warning by Jeffrey Tan FCJ in Letchumanan
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Chettiar Alagappan (As Executor to SL Alameloo Achi (deceased) & Anor
v. Secure Plantation Sdn Bhd may be instructive:
“A forged power of attorney remains a forged instrument,

notwithstanding its registration under the PA Act. The registration
of a forged power of attorney will not turn it from fake to genuine.
Whether fake or genuine could not be based on its registration or
otherwise. Its validity should be based on the PA Act. It was an
elemental error to hold that the impugned PA was valid (sah)
because of its registration. [10]
Part 7
Revoking the PA
Section 5 of the Act is titled as ‘Revocation’. However, this section

actually provides for other mechanisms by which a PA ceases to have any
force. This includes notices of revocation by the Donor or renunciation by
the Donee both of which notices must be deposited at the office where the
‘true copy’ referred to in section 4 was originally deposited. Alternatively,
according to this Section, a PA ceases to have any force if either the Donor
or Donee has died or the Donee becomes of unsound mind or the Donor is
adjudged to be of unsound mind or becomes a bankrupt.
With respect to revocation, note that common law principles are

inapplicable as the Courts require the revocation to strictly follow the
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procedure in the Act. This can be seen in the case of Sidambaram
Torosamy v. Lok Bee Yeong where Hamid Sultan Abu Bakar JCA ruled as
follows:
“Once a valid power of attorney is given, it remains in full force

until it is lawfully revoked. That is to say, the common law principles
of revocation by conduct by the donor will not be applicable. Section
5 of PA 1949 sets out the procedure for revocation….”[11]
Take note, however, of the effect the words in this section which states,
“so far as may be compatible with the terms of the instrument”. This was
considered in PG Md Yaakub Pg Hashim & Ors v. Ak Mahrup PG Hashim
where the Brunei High Court held as follows:
“Section 4 of the Powers of Attorney Act (Cap 13) provides that a PA
continues to be in force until notice in writing of the revocation is
given by the donor or the donor renunciates the PA, ‘so far as may be
compatible with the terms of such instrument’. In this case the PA was
given for the lifetime of the donee. There was no provision in the PA
itself for an early termination of it. Therefore, however dissatisfied
the plaintiffs were with the performance of the defendant, there was
no way in which the PA could be revoked, short of an agreement by
both parties that the PA should no longer apply.” [12]
In practice, a PA is revoked by filing into Court a Deed of Revocation.

This instrument must be signed by the Donor. Alternatively, where the
Donee renounces rights over a PA, the instrument to be filed into Court is
a Deed of Renunciation. Presently, this is done through the e-filing system
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referred to in Part 6 above.
Part 8
Searches regarding the PA
Section 12 of the Act provides the procedure to obtain copies of a PA and

its related documents. For this purpose, any person desirous of obtaining
information respecting any specified document deposited in the office of
the Registrar or Senior Assistant Registrar may obtain copies by paying
the requisite fees. Also note Section 9 which allows the inspection of
documents.
Part 9
The PA in other legislation
Although the Act is the principal act in terms of the PA itself, care must be
taken to ensure compliance to requirements in other Acts. Briefly, these
are as follows:
Rules of Court 2012 (‘ROC’)
Order 60 r. 6 generally shows the formalities relating to the deposit of a

PA under Section 30 of the Trustee Act 1949 (Act 208) or the Act. This
has to be read together with O. 60 r. 7.
Order 71 r. 26 provides that if a person entitled to a Grant of Probate or

Letters of Administration is outside Malaysia, administration may be
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granted to that person’s “lawfully constituted attorney … limited until such
person shall obtain a grant or in such other way as the Registrar may so
direct”. Order 71 r. 30 provides for the use of a PA by a trust corporation
or other corporate bodies.
Trustee Act
Under Section 3 (Interpretation) of the Trustee Act 1949 (Act 208) the
word “trust”, “where the context admits, includes a personal
representative”. The word “personal representative” is defined as “the
executor, original or by representation, or administrator for the time being
of a deceased person”.
Section 30(1) of this Act gives the power to a trustee (by definition this
includes an Executor or Administrator) the power “to delegate all or any
trusts, powers and discretions vested in him” by way of a PA where a
trustee intends to stay out of Malaysia for a period exceeding 14 days.
Other important provisions in this section are:
 Section 30(3): the PA shall not come into operation unless the
Donor is out of Malaysia and shall be revoked by the return or
entry of the Donor into Malaysia;
 Section 30(4): the PA must comply with the requirements of

the Powers of Attorney Act 1949 (Act 424) - note the
requirement for a Statutory Declaration by the Donor
confirming that the Donor intends to remain out of Malaysia
for more than 14 days from the date of the declaration; and
 Section 30(9): the PA shall not be operative for a period longer
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than 3 years after the date of its execution.
National Land Code 1965 (Act 56)
The PA may be used for certain specified situations in the National Land
Code 1965 (‘NLC’). For this purpose, a PA which has been registered in
Court must also be registered in the relevant Land Registry / Land Office.
When registered, the Registrar of Titles will ascribe its own a registration
number to the PA. In practise, when a Donee signs an instrument for
presentation to the Land Registry pursuant to a PA, particulars of the name
of the Donee, the PA registration number and the date it was registered
should be stated, failing which, the instrument may be rejected. The
situations where a PA may be used under the NLC include:
Division III (Alienated Lands: Incidents & Registration of Title)
Applications made under this division include variations to

Conditions and Restrictions in Interest, Subdivision, Partition,
Amalgamation, Replacement of Title and Surrender of Title. Section
157A of the NLA states that all applications under Division III “may
be made by a donee of a power of attorney from the proprietor of the
alienated land….”. Section 157B provides the procedure to be
observed when a PA is filed pursuant to Section 157A.
Part 18 (Registration of Dealings)
Section 292 of the NLC stipulates the instruments that may be

registered under Part 18. Briefly these are transfers, leases, charges,
easements or any Certificate of Sale under Part 16.
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Section 309 (1) of the NLC provides to the effect that an instrument
presented for registration under Part Eighteen may be signed by a
Donee under a PA. . The procedure to be followed when a Donee
signs an instrument under Part 18 on behalf of the Donor is shown in
Section 310. As Section 309(1) confines itself to instruments
presented for registration under Part Eighteen (which are instruments
for dealings), it is questionable whether a Private Caveat may be
lodged under the authority of a PA as a Private Caveat falls under
Part Nineteen of the NLC.
Note also that Section 433F of the NLC does not permit a PA to be used
for an application under Section 433B (acquisition of land by non-citizens
or foreign companies) or Section 433E (conveyance or disposal to non-
citizen or foreign company subject to approval and payment of levy etc.
Malay Reservations Enactments
Each State in West Malaysia except Penang and Melaka has its own
version of the Malay Reservations Enactment. It is intended to prevent
land in Malay reservation areas from being disposed to non-Malays.
Care must be taken when drafting a PA involving lands in Malay

reservation areas as the Enactment have specific prohibitions regarding the
use of a PA to give effect to transactions involving these lands. An
example is Section 9 of the Malay Reservation Enactment (As Applicable
To The Federal Territory of Kuala Lumpur, F.M.S Cap. 142.) which states
as follows:
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Restriction as to dealings by attorneys
Every memorandum of transfer, charge or lease of a Malay holding

which is executed on behalf of the proprietor thereof by any person
not being a Malay who purports to act as attorney of such proprietor
shall be void and no such memorandum of transfer, charge or lease
shall be capable of registration in any Land Office or Registry of
Titles.
Conclusion
It can be concluded that a mere use of precedent is not a viable practice

and that a proper understanding of the purpose and rules of the PA are
equally important in ensuring that a drafted PA is valid and enforceable.
Checklist For Preparing A PA
Part TASK STATUS
1 Take instructions from client
a. Ascertain the requirements of the Donor and decide

whether a PA is suitable for the Donor’s purposes.
b. Decide whether general or specific PA is suitable
c. Ascertain whether revocable of irrevocable PA is

required
d. Secure the necessary documents to identify the

Donor and Donee
2 Drafting the PA
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a. Decide language of PA
b. Heading
c. Appointment Clause
d. Recitals
e. Body
f. Ratification Clause
3 Execution & Authentication
a. Ensure PA is executed in manner permitted for an

individual or company.
b. Ensure PA is authenticated by the prescribed

persons stated in Section 3 of the Act using the
appropriate Form shown in the First Schedule.
4 Stamp the PA
5 Register the PA according to Section 4 (1) of the Act
_____________________________________________________________
* The old adage states that ‘every dark cloud has its silver lining’. This
article is my ‘silver lining’ resulting from the dark cloud of the Covid-19
MCO lockdown period. Hopefully, it will be of assistance to fellow
solicitors, specifically those who have just commenced practice.
Needless to say, this article is not the result of my own efforts. I had lots of
advice and assistance. My sincere thanks go to Dato’ Dr. Abd Shukor
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Ahmad, Advocate & Solicitor, for his guidance and advice and to Ms.
Deepa Nanthini Sundaran, Advocate & Solicitor, for assisting me in
research relating to this article. I remain solely responsible , however, for
all errors or omissions. To my wife and children who allowed me to spend
much of my time these few months on my laptop – thank you for your
patience and support.
** Advocate & Solicitor, High Court of Malaya.
Endnotes:
[1]
[2013] 5 CLJ, page 441, paragraph 61.
[2]
[2013] 8 CLJ 775, paragraph 85.
[3]
[1988] 1 CLJ 480, page 511.
[4]
[1968] 2 MLJ, at page 116.
[5]
[2017] 1 LNS 2086, page 50 onwards.
[6]
See N.S. Bindras “Conveyancing – Draftsman & Interpretation of
Deeds”, (Delhi Law House: 2005), 7 th Edition, page 1808.
[7]
[1998] 1 CLJ, page 510.
[8]
[2017] 5 CLJ page 437 at paragraph 13.
[9]
[1998] 1 CLJ, page 513.
[10]
[2017] 5 CLJ page 431, paragraph 9.
[11]
L A W
[12]

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[2020] 1 LNS(A) lxxv Legal Network Series 1

THE POWER OF ATTORNEY: AN INTRODUCTION*

Andrew Das Solomon**

How do you prepare a Power of Attorney (PA)? Does a PA have to be

The Power of Attorney (‘PA’) is a frequently encountered instrument in

A PA is an instrument by which one person (called the ‘Donor’) appoints

A PA can be granted by both natural persons as well as companies. This

The Powers of Attorney Act 1949

Stage 1: Taking Instructions from the client

For practical reasons, it is best to first consider whether the Donor is

 whether the Donor has reached the age of majority,

 whether the Donor is of sound mind; and

 whether the Donor is signing the PA on a free-will basis

It is also important at this stage to determine whether the PA is to be given

An example of a situation where a general PA may be suitable is

A specific PA is used where the Donor may only want to grant a

Lastly, it is important to obtain instructions from the client on whether the

This section, inter alia, provides that where a PA is given for

(i) without the concurrence of the Donee; or

(ii) by the death, marriage, metal disorder, unsoundness of

Hence, where a PA is given for valuable consideration, it cannot be

Section 7 (Powers of Attorney expressed to be irrevocable for a

This section, inter alia, provides that whether or not a PA is given

(i) without the concurrence of the Donee; or

(ii) by the death, marriage, metal disorder, unsoundness of

Stage 2: Drafting the PA

The PA may be drafted in either Bahasa Malaysia or English.

This is the title of the instrument and is normally stated as “Power of

Recitals are important as it aids a Court when construing the ambit

“It is of utmost importance that in construing a power of

"... powers of attorney are to be construed strictly - that is to

“The power is not a home-made document, it is couched in legal

This observation emphasises the standard of expression that the Court

This is a rather standard clause by which the Donor agrees to ratify

This is dealt with in more detail in Part 4 below.

Execution and Authentication of the PA

A PA must be executed by the Donor and authenticated by two prescribed

“Where a document needs to be attested according to the provisions

Section 3 of the Act provides that for a PA to be valid within Peninsular

“Authentication is not merely attestation but something more. It

The prescribed persons authorised to authenticate a PA in the Act depends

Where the PA is executed within West Malaysia

 a Commissioner for Oaths;

 an Advocate & Solicitor; or

 an officer, acting in the course of his employment, of a

Where the PA is executed outside West Malaysia

The prescribed persons according to Section 3(1)(b) are:

• a Commissioner for Oaths;

• a British Consul or Vice-Consul;

on and after Merdeka Day, any Consular Officer of Malaysia;

• in the case of an instrument executed in the Kingdom of Saudi

• in the case of an instrument executed in the Republic of

It is imperative that a PA is authenticated according to the requirements of

“It is apparent that the validity of a power of attorney is dependent

This was emphasised by the Federal Court in Letchumanan Chettiar

“Section 3(2) of the Act provides that in order to have validity, a

Previously, this was done by physically delivering the duly stamped

Presently, a PA may be registered through the e-filing system. A clear

Note that mere registration of a PA may not make it a valid instrument. In

“A forged power of attorney remains a forged instrument,

Section 5 of the Act is titled as ‘Revocation’. However, this section

With respect to revocation, note that common law principles are

“Once a valid power of attorney is given, it remains in full force