How to Draft a Special Power of Attorney: Relevant Steps to Take

how to draft  special power of attorney,

It's illegal and unlawful for anyone to act on behalf of another in certain transactions without his express consent.  But occasions where a person voluntarily gives his consent, he usually do so by donating a power of attorney to another person to act in a particular way on his behalf.

There are various types of powers of attorney (depending on the nature of a transaction). The Commonest ones are:
  • Revocable and irrevocable power of Attorney
  • Non-durable power of Attorney
  • Durable power of Attorney
  • Special (limited) and general power of Attorney.
 All powers of Attorney have similar format    their clauses look alike. However, there are some slight variations in languages and expressions use by different legal writer.

A special power of attorney is usually given to an agent to take major decision when the principal is not around or unavailable as a result of either illness or other commitments. It could be in form of authority given to an agent by the principal to act in a certain way like ( representing the principal in a court case, negotiating a contracts, payment of medical expenses and selling of property)

The person that gives the authority is called the Donor (principal) while the person whom the authority is given is the Donee (agent).

 Below are Important steps you need to take to draft a power of attorney.


Step 1)   Make a Checklist                    

To draft a professional power of attorney, you need to list out the special powers . The list should be expressed, specified and listed in the power of attorney.

Except where you want your agent to do other things outside the specified powers, a special power of attorney shouldn't have an omnibus clause.

An omnibus clause is where you state that "the power of attorney is for your agent to do other things you can lawfully do" which it commonly use in general power of attorney.

Again, if the essence of the power of attorney is to enable an agent to manage your property, you need to state expressly the things he will be doing. Things like collection of rents, issuance of notices, payment of utility bills and other things have to be expressly included in the power of attorney.

 If you fail to list out all the things you want your agent to do, it will be presume that such things never form part of the power of attorney.

Step 2)   State The Revocable Clause

Just like any other clauses in a power of attorney, the revocable clause has to be carefully and specifically stated because it determines when and how the power of attorney will be revoke.

Revocable clause distinguishes a revocable power of attorney from a irrevocable power of attorney.

Failing to state the revocable clause in a special power of attorney, it will be presume the power of attorney will last in perpetuity: irrevocable

 One thing that must be in your mind while drafting the revocable is  the day and the date the power of attorney will cease, and the circumstances or events that will bring it to an end.

Except where there is an omnibus clause, a power of attorney suppose to end when the assignment or the duty given to an agent comes to an end.

You can draft your revocable clause as follows:

This Power of Attorney shall terminate on the date of ____________, 20____, unless I have revoked it sooner. I may revoke this Power of Attorney at any time and in any manner.

Step 3)  State The Assignable Clause

You need to state whether the special power of attorney is assignable or not. It is tht Assignable clause differentiate a limited power of attorney from a general power of attorney, and it is a mandatory requirements of every special power of attorney.

Assignable clause is where your state whether the agent can assign to a third party, any or all, the powers given to him.

While drafting your assignable clause, it is important to include the conditions and the circumstances where your agent can assign his powers, whether it will be with your consent or without your consent. If possible, get the name or names of the assignee and include it in the power of attorney.

Step 4)  Draft The Power of Attorney

After taking the above stated steps, go ahead and draft your power of attorney

A special power of attorney like other types of power attorney is more like a deed.

Important parts of a Special Power of Attorney

  1. a  commencement: this Power of Attorney .
  2. a date: made This ----- Day of ---------,2017
  3. the parties: between ---------------- ( Principal/Donor) of -------------------------------------- (address) of the first part And ----------------------- ( Agent/Donee) --------------------------- (address) of the other part.
  4. appointment clause: hereby appoint --------------------- (Agent/Donee) to be my true and lawful attorney, and on my behalf to ----------------------------------------------------------------------- and every other things I shall lawfully do.

Unimportant Parts of a Special Power of Attorney

  1. Recital.
  2. Testatum.
  3. Attestation.

Step 5)  Execute The Power of Attorney

For a power of attorney to be legal and binding on the agent, it must be executed by the principal.

Special power of attorney is a kind of "grant deed" which makes the signature of the principal importance.

The signature of the agent does not affect the validity of a special power of attorney. Because whether or not an agent signs, it will still remain valid and enforceable. And where an agent does not sign, the power of attorney will still be binging on him.

Step 6)  Notarize The Power of Attorney

Acknowledgement of a notary public is important in power of attorney. There are states where every power of attorney must be notarize by a notary public for it to be valid.

 A notarized power of attorney authenticates the identity of the principal/ Donor, and it's an evidence the document was properly executed.

 Ensure the signature of a notary public is an essential requirements in a special power of attorney in your state before notarizing it. Otherwise, if you notarize a power of attorney in a state where it is not an important requirement, it will not affect its validity.

The steps stated in this post are the basic steps you need draft a special power of attorney. I know, perhaps, you have some other steps you think are necessary. If you do, drop a comment below.