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Power of Attorney Documents – Legal Formalities

Power of Attorney Documents – Legal Formalities to be met

Whilst the content of a power of attorney document will usually be fairly simple, to be legally valid and effective it must be created as a document that amounts to a valid “deed” in law. In order to ensure that it does amount to a valid “deed”, there are particular legal formalities which have to be strictly observed. If they are not fully observed, the document might, as a result, not amount to a “deed” in law and therefore not be a legally valid, binding and effective power of attorney.

The document will be a “deed” in law only if it states within it that it is intended to take effect as a deed and if it is signed by the person or entity appointing the agent in the correct way. 

The individual appointing the attorney must, in order to validly execute a deed, sign it in the presence of a witness who attests the signature (or at the direction and in the presence of the appointor and the presence of two witnesses who each attest the signature) and delivered as a deed.

A witness must be an individual, not a corporate entity. The witness “attests” a signature if they observe the document being signed by the appointor, and the witness signs the document under a statement (commonly referred to as an attestation clause) that the document was signed or executed by the appointor in the presence of that witness.

The Companies Acts regulate how a UK company can enter into a deed. A deed is validly executed by a company which is appointing the attorney if:

  1. the company affixes its common seal to the document; or
  2. the document contains the signatures of either: 
  • two authorised signatories (such as a director or the secretary of the company); or
  • a director of the company attested by a witness.

The requirements in other cases (e.g. where trustees or partners are to enter into a deed) may differ and are beyond the scope of this page.

The deed must then be “delivered” to be valid and effective. The legal meaning of “delivery” of a deed is that it is “delivered” if it has been signified by the appointor that they intend the document to be effective and that they are bound by it. This can be done by words or acts of the individual who is the appointor, clearly showing that intention or by their handing it over to the attorney in circumstances where it is clear that is the intention. (However, where the deed is executed by an appointor which is a company, the mere execution of it might amount to “delivery” and so for that reason legal advice should be taken on that point before executing it). 

You might also need to be consider other legal aspects relating to content of a power of attorney document, how it may or should be signed and dated and what will amount to “delivery”, and so it is advisable to obtain legal advice generally before taking steps to create a power of attorney document.

You will find some guidance on how to validly execute (sign) a deed in Guidance Note: Formalities for Signing Contracts. Guidance on whether and how electronic signatures can be used in the creation of deeds can be found in Guidance Note: Electronic Signature of Deeds and Contracts. (Both of these guidance notes are in Heads of Terms, MOU and Exclusivity).

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