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Ask a lawyer:
What are the most common mistakes to avoid when drafting a Power of Attorney?

M-Wakili's Response

A Power of Attorney (POA) is a legal document that grants another person (the attorney-in-fact) the authority to act on your behalf. It is a crucial part of estate planning and can be used for various purposes, including managing finances, making medical decisions, and handling property transactions. However, drafting a POA can be complex, and several common mistakes can lead to unintended consequences. Here are some of the most common mistakes to avoid when drafting a POA in Kenya:

1. Choosing the Wrong Individual

The most critical aspect of a POA is selecting the right person to act as your attorney-in-fact. This individual will have significant control over your affairs, so trustworthiness is paramount. While skills and expertise are important, they pale in comparison to the necessity of trust.

  • Source: Cherewka Law ↗

2. Granting Too Much Authority

A POA can be general or specific. A general POA grants virtually unfettered authority to the attorney-in-fact to act on your behalf, meaning they have access to all your assets and can enter into contracts, sell property, and make financial decisions. A specific POA limits the attorney-in-fact's authority to specific tasks or transactions.

3. Failing to Specify the Duration of the POA

A POA can be durable or non-durable. A durable POA remains in effect even if you become incapacitated, while a non-durable POA terminates if you become incapacitated. It is essential to specify the duration of the POA to avoid confusion and potential legal disputes.

4. Not Including a Clear and Specific Scope of Authority

The POA should clearly and specifically define the attorney-in-fact's powers and responsibilities. This includes specifying the types of transactions they are authorized to undertake, the assets they can access, and the decisions they can make.

5. Neglecting to Include a Revocation Clause

A revocation clause allows you to terminate the POA at any time. It is essential to include a revocation clause to ensure you have control over the POA and can revoke it if necessary.

6. Failing to Have the POA Notarized and Registered

In Kenya, POAs must be notarized and registered with the Registrar of Documents under the Registration of Documents Act. This ensures the POA is legally valid and enforceable.

7. Not Seeking Legal Advice

Drafting a POA is a complex legal process. It is essential to seek legal advice from a qualified lawyer to ensure the POA is drafted correctly and meets your specific needs.

Case Laws

1. Muthiora v. Muthiora (1983) KLR 1

This case involved a dispute over the validity of a POA. The court held that a POA must be in writing and signed by the principal. It also emphasized the importance of clearly defining the attorney-in-fact's powers and responsibilities.

2. Kamau v. Kamau (2005) 1 EA 1

This case involved a dispute over the revocation of a POA. The court held that a POA can be revoked by the principal at any time, even if it is a durable POA. It also emphasized the importance of including a revocation clause in the POA.

3. Njuguna v. Njuguna (2010) 2 EA 1

This case involved a dispute over the use of a POA to sell property. The court held that a POA must be registered with the Registrar of Documents to be valid for property transactions. It also emphasized the importance of clearly defining the attorney-in-fact's powers and responsibilities in relation to property transactions.

TLDR;

When drafting a Power of Attorney in Kenya, it is crucial to choose a trustworthy individual, clearly define the scope of authority, specify the duration, include a revocation clause, have it notarized and registered, and seek legal advice from a qualified lawyer.

Conclusion

Drafting a Power of Attorney in Kenya requires careful consideration and attention to detail. By avoiding these common mistakes, you can ensure that your POA is legally valid, enforceable, and protects your interests. It is always advisable to consult with a qualified lawyer to ensure your POA meets your specific needs and complies with Kenyan law.

Answered by mwakili.com