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Law of Conveyancing Topic 3: Powers of Attorney LAW512

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Page 1: Topic 7 - Power of Attorney

Law of Conveyancing

Topic 3: Powers of Attorney

LAW512

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Donee – Joint or Severally

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Duration of PA

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Malaysian Powers of Attorney Act 1949

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Powers of attorney given for valuable consideration

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Cont’

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Cont’

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Powers of attorney expressed to be irrevocable for a fixed time

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Cont’

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Cont’

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UK Powers of Attorney Act 19711. Ordinary (traditional) Powers2. Trustee Powers3. Enduring Powers4. Lasting Powers

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Ordinary (traditional) PowersA PA was originally granted to authorise the

attorney to manage the donor’s property and financial affairs or for commercial purposes. The attorney’s authority comes to an end if the donor ceases to have mental capacity.

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Trustee PowersThe general rules forbid a trustee to

delegate his functions and responsibilities to anyone else. Statute authorises a trustee to grant PA in certain circumstances

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Enduring PowersAn enduring PA enable the donor to give

the attorney authority to manage the donor’s property and financial affairs even after the donor had lost mental capacity. No further enduring powers can be granted, but those validity granted earlier to continue to be effective.

Could be granted from 10 March1986 until 30 September 2007

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Lasting PowersA lasting PA can be used in the same way

as an enduring power. In addition in can give the attorney the authority in relation to matters of donor’s personal welfare this class of PA is effectively sub-divided, because there are separate prescribe form for power dealing with the donor’s property and affairs and those deal with his personal welfare . A donor wishing to grant a comprehensive power, giving both types of authority, must execute two powers.

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What Language should be Used?

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What to prepare?

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How To Register PA?To bring both one (1) original copy and one

(1) a duplicate of the original copy of the Power of Attorney document to the Power of Attorney Registration Office, High Court of Malaya, Kuala Lumpur or at any Registration Office of the High Court of Malaya in West Malaysia

A duplicate of the original copy of the PA to be filed and deposited in the court.

To bring back the original copy of the PA.

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Section 4 – Deposit of PA(1) Except as hereinafter provided no instrument

purporting to create a PA shall, after the commencement of this Act, have any validity to create such power within *Peninsular Malaysia until—

(a) a true copy of the said instrument duly compared therewith and marked by the Senior Assistant Registrar with the words “true copy”; or

(b) 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.

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Section 9 - Register of powers of attorney and inspection of register

A separate file of documents deposited in accordance with section 4 shall be kept by every Senior Assistant Registrar, who shall enter in a register kept for that purpose short particulars of each such document together with any subsequent revocation or other determination thereof of which he shall have had notice, and

any person may, during the usual office hours, upon payment of the prescribed fee, search such register and file and inspect any document so deposited, and an office copy of such document shall be delivered out to him on request and on payment of the prescribed fee.

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Section 3 - Authentication of PASection 3 of PA Act 19493. (1) No instrument purporting to create a PA executed after

the commencement of this Act shall have any validity to create such power within **Peninsular Malaysia unless—

(a) if executed within *Peninsular Malaysia, the instrument is executed before, and is authenticated in the appropriate form set out in the First Schedule hereto by—

(i) a Magistrate;(ii) a Justice of the Peace;(iii) a Land Administrator;(iv) a Notary Public;(v) a Commissioner for Oaths;(vi) an advocate and solicitor; or(vii) 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; or

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Cont’ – within West MalaysiaAuthentication by the persons above must

be in the form prescribed in the Powers of Attorney Act 1949. The forms are:

- FORM I - Authentication Form for Individual Donor

- FORM II - Authentication Form for Company or Corporation Donor.

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Form 1FORM I

FORM OF AUTHENTICATION IN CASE OF A POWER OFATTORNEY EXECUTED BY AN INDIVIDUAL

I ……....… (Magistrate, Justice of the Peace, Land Administrator, Notary Public, Commissioner for Oaths, Bank Official or Advocate and Solicitor of the High Court in Malaya) officiating [or practising] at........…, hereby certify that the (signature/thumb mark) of the donor above named was (written/affixed) in my presence on this …..…… day of ……… 20 ………, and is, to my own personal knowledge, [or according to information given to me by trustworthy and respectable persons, namely ……… of .................. and ................ of ...................., which information verily believe,] the true (signature/thumb mark) of ….....…… who has acknowledged to me that he (is/is not) of full age and that he has voluntarily executed this instrument.

Witness my hand ……………

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Form IIFORM OF AUTHENTICATION IN CASE OF A PAEXECUTED BY A COMPANY OR CORPORATION

I ……… (Magistrate, Justice of the Peace, Land Administrator, Notary Public, Commissioner for Oaths, Bank Official or Advocate and Solicitor of the High Court in Malaya) officiating [or practising] at ………, hereby certify that on this ……… day of ……… 20 ………, the common seal of (state name of company or corporation) was duly affixed to the above written instrument in my presence in accordance with the regulations of the said (company/corporation)

Witness my hand ……………

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Outside West Malaysia(b) if executed outside *Peninsular Malaysia, the execution of

such instrument is authenticated, in such form as may be accepted by the Registrar, by—

(i) a Notary Public;(ii) a Commissioner for Oaths;(iii) any Judge;(iv) a Magistrate;(v) a British Consul or Vice-Consul;(vi) a representative of Her Britanic Majesty;(vii) on and after Merdeka Day, any Consular Officer of Malaysia;(viii) in the case of an instrument executed in the Kingdom of

Saudi Arabia, the Malaysian Pilgrimage Commissioner; or(ix) 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.

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Cont’ – outside West MalaysiaThere is no specific format to be followed

as in the Powers of Attorney Act 1949, but there must be some form of authentication by the persons above to be enclosed in the PA document.

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Who can register PA?Either the Donor or the Donee may register

his/her PA documents, or by any lawyer presenting such documents

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Where to register PA?At the PA Registration Office, High Court of

Malaya, Kuala Lumpur, or At any Registration Office of the High Court

of Malaya in West Malaysia

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Fees For Registration of PARegistration                RM25Deposit                     RM10Fee per printed sheet       RM2

prior to execution page

PA document must be duly stamped at the Stamp Duty Office before it can be registered at the High Court.

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Structure – Sample CIMBParticulars of the Donor Particulars of the DoneeReference to the Loan Agreement datedConsideration by the Donor; premiseConsideration by the Donee; agreeing to

make available the Loan to the Donor/Borrower

Appointment of the Bank (Bank’s directors or it’s officers) as Donor’s Attorney

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Cont’ - StructureDonor’s irrevocable instruction List of Attorney’s powerSigning pageAuthentication Clause

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Section 157A NLCApplication by donee of a power of attorney. (1) may be made by a donee of a power of attorney

from the proprietor of the alienated land whereby the proprietor confers on the donee the power to make such application on behalf of the proprietor.

(2) An application by a donee of a power of attorney under sub-section (1) shall be accompanied by-

(a) an office copy thereof within the meaning of section 10 of the Powers of Attorney Act, 1949, or in the case of a power to which sub-section (4) of section 4 of that Act applies the original thereof; and

(b) a copy thereof for filing by the Registrar.

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Cont’(3) The donee of a power of attorney under sub-section (1)

shall, not withstanding anything contained in the power of attorney, have the power to do all such acts or things as may be necessary or required under this Act in relation to the application, and the proprietor shall be bound by all such acts or things done by the donee in the same manner as the proprietor would be bound if done by the proprietor personally.

(4) The Land Administrator may require from the donee of a power of attorney under subsection (1) or the donor thereof a statutory declaration or other evidence upon oath or affirmation, that the power of attorney was, at the material time, still in force.

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Section 157BProcedure in respect of filing of copy of power of

attorney. Where, pursuant to paragraph (b) of sub-section (2) of section 157A, an application is accompanied by a copy of a power of attorney for filing by the Registrar, the Registrar shall-

(a) compare that copy with the office copy or, as the case may be, original power of attorney sent pursuant to paragraph (a) of that sub-section; and

(b) (i) file the compared copy; (ii) note the existence of the compared copy, and

the reference under which it is filed, both on the application and on the office copy or the original power of attorney; and

(iii) return the office copy or original power of attorney to the person or body by whom it was sent.

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Section 309 NLC Documents to accompany instruments executed

under power of attorney. (1) Where any instrument presented for

registration under this Part has been executed on behalf of any person or body under a power of attorney, it shall be accompanied by-

(a) an office copy thereof within the meaning of section 10 of the Powers of Attorney Ordinance, 64 of 1949, or, in the case of a power to which sub-section (4) of section of that Ordinance applies; the original thereof; and

(b) subject to sub-section (2), a copy thereof for retention by the Registrar.

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Section 310 NLC(1) Where, pursuant to paragraph (b) of sub-section (1)

of section 309, any instrument to which that section applies is accompanied by a copy of a power of attorney for the Registrar's retention, the Registrar shall-

(a) compare that copy with the office copy or, as the case may be, original power of attorney sent pursuant to paragraph (a) of that sub-section, and

(b) on registering the instrument- (i) file the compared copy; (ii) note the existence of the compared copy, and the

reference under which it is filed, both on the instrument and on the office copy or original power of attorney; and

(iii) return the office copy or original power of attorney to the person or body by whom it was sent.

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Cont’ (2) Where, in the case of any instrument to which

section 309 applies, a copy of any power of attorney has, as mentioned in sub-section (2) of that section, been filed by him on some previous occassion, the Registrar shall-

(a) on registering the instrument, note thereon the existence of that copy, and the reference under which it is filed; and

(b) in any case where the instrument was accompanied by an office copy not previously submitted to him, make a like note thereon before returning it to the sender.

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Section 311 NLCIn determining the fitness for registration of any

instrument to which section 309 applies, the Registrar- a) may, without prejudice to the generality of his

powers under section 302, require from the attorney or his principal a statutory declaration, or other evidence upon oath or affirmation, that the power of attorney was, at the material time, still in force; but

(b) shall not, in the exercise of those powers, require proof of the due execution of any power of attorney where the document delivered to him pursuant to paragraph (a) of sub-section (1) of the said section 309 was an office copy thereof.

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Revocation – Section 5Section 5 of PA Act 1949Every instrument purporting to create a PA of which a true

copy or an office copy has been deposited in the office of the Registrar or a senior Assistant Registrar in accordance with this Act or any law repealed by this Act whether before or after the commencement of this Act, shall, so far as the said instrument is valid and so far as may be compatible with the terms of the instrument, continue in force until

1. notice in writing of the revocation thereof by the donor, or of the renunciation thereof by the donee, has been deposited in every office in which the office copy or true copy thereof has been so deposited, or

2. either the donor or the donee has died or the donee has become of unsound mind, or the donor has

been adjudged to be of unsound mind or 3. a receiving order has been made against him in

bankruptcy.

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What to prepare for Revocation of PA?

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How to Register Revocation of PA?

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Fees for the Registration of Revocation of PA

Registration                 RM10Fee per printed sheet        RM2

prior to execution page

Power of Attorney document must be duly stamped at the Stamp Duty Office before it can be registered at the High Court

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ReferencesMalaysian Powers of Attorney Act 1949 Powers of Attorney, Trevor M. Aldridge, 10

Edition, London, Sweet & Maxwell 2007CIMB Bank PA DocumentOfficial website of the Office of the Chief

Registrar Federal Court of Malaysia at http://www.kehakiman.gov.my/?q=en/node/571