POWER OF ATTORNEY

DEFINITION
• A POWER OF ATTORNEY is a document which expressly
appoints another either a natural person or persons or a
corporation or corporations who have the capacity to act on
behalf of the person or party
Lim Eng Chuan Sdn Bhd v United
Malayan Banking Corp & Anor [2013] 3
MLJ 161
• Facts: The first respondent (UMBC) had granted the appellant
an overdraft facility secured by a debenture which included a
fixed charge over seven pieces of land and a charge under the
National Land Code (NLC) over the lands. The debenture
contained an irrevocable power of attorney (PA) granted by
the appellant in favour of UMBC. However, the appellant
defaulted the facility and was wound up. UMBC gave notice
that it would exercise its power under the PA to sell the lands
Issue: - Can a PA for valuable consideration and expressed to
be irrevocable, be granted by a company as donor (as opposed
to a natural person) pursuant to s 6(1)(a) of the Powers of the
Attorney 1949
 Lim Eng Chuan Sdn Bhd v United Malayan
Banking Corp & Anor [2013] 3 MLJ 161
• In view of the construction of s 3(1)(a) of the PA and s 35(6) of
the CA, a company or corporation is competent to create a
power of attorney. 2. Form II in the First Schedule to the PA
Act 1949 is the appropriate form referred to in s 3(1)(a). This
form sets out the form of authentication in the case of a
power of attorney executed by a company or corporation. 3.
When both s 3(1)(a) and Form II are read and construed
simultaneously, it is clear that a company is competent to
create a power of attorney, provided that there is scrupulous
compliance with the form of authentication, as has been done
in the PA. 4. Power of attorney can be granted by a company
as donor.
DEFINITION
• The person or party who grants the PA is known as the ‘donor’
and the person or party who acts under the PA is known as the
‘donee’.
•
DEFINITION
• Section 2 Stamp Act 1949 (Act 378) Power of Attorney means
any instrument except a warrant to act as a solicitor in any
judicial proceeding empowering a specified person to act in the
stead of the person executing it.

• Judith E. Sihombing in “The National Land Code - A

Commentary“ “A power of attorney is an instrument where one
person (the donor of the power) formally authorizes another
(the donee of the power ) to act as his agent; the donor effects
an instrument (the power of attorney) to appoint the donee his
attorney under power”, and "The result of appointing the donee
as attorney is to enable the donee to act for the donor generally
or in a specified transaction or series of transactions".
 POWER OF
ATTORNEY
(PA)

DONOR (PRINCIPLE) DONEE (AGENT)

BASIC FEATURES
• 1. It is formed via a document or instrument that is formal as
opposed to informal
• 2. It is designed to effect a relationship whereby one person
‘represents’ another
• 3.there may be limits to the scope of that representation
PURPOSE
PA is extensively used as a convenient instrument for many
purposes

1. Commercial
2. Family-elderly, person residing abroad
THE LAW
• POWER OF • 15 SECTIONS
ATTORNEY ACT 1949 • 2 SCHEDULES
• APPLICABLE IN
PENINSULAR
MALAYSIA
RELEVANT LAW-NLC
• SECTION 309
• SECTION 310
• SECTION 311
NEXUS BETWEEN POWER OF ATTORNEY AND LAW
OF CONTRACT
• Under Section 10 of the Contracts Act 1950: “All agreements
are contracted if they are made by the free consent of parties
competent to contract, for a lawful consideration and with a
lawful object, and are not hereby expressly declared to be
void.”
NEXUS BETWEEN POWER OF ATTORNEY AND LAW
OF CONTRACT
• Under Section 135 of the Contracts Act 1950: An “agent” is a
person employed to do any act for another or to represent
another in dealings with third persons. The person for whom
such act is done, or who is so represented, is called the
“principal”. PRINCIPAL = DONOR/ AGENT = DONEE ::
NEXUS BETWEEN POWER OF ATTORNEY AND LAW
OF CONTRACT
• Under Section 137 of the Contracts Act 1950: As between the
principal and third persons, any person may become an agent;
but no person who is not of the age of majority and of sound
mind can become an agent, so as to be responsible to his
principal according to the provisions in that behalf herein
contained.
NEXUS BETWEEN POWER OF ATTORNEY AND LAW
OF CONTRACT

In the case of Wan Salimah bte Wan Jaffar v Mahmood bin Omar
[1998] 5 MLJ 162, it was held that the validity of a power of
attorney is dependent on its execution before certain named
personalities and must be authenticated in the appropriate forms
set down in the First Schedule of the Powers of Attorney
AUTHENTICATION-within Peninsular
Malaysia
• S. 3 (a) PA Act • Magistrate
• If the PA is executed • Justice of Peace
within Peninsular • Land Administrator
Malaysia • Notary Public
• Commissioner for Oaths
• Advocates & Solicitors
• Bank officer carrying on
the business of banking
in Peninsular Malaysia
and incorporated under
local laws
AUTHENTICATION-outside Peninsular
Malaysia
• Notary Public
• S. 3 (b) PA Act
• Commissioner for Oaths
• If the PA is • Judge or magistrate
executed outside • British Consul or vice –consul
• Representative of Her Britanic
Peninsular Majesty
Malaysia • Consular Officer of Malaysia
• Malaysian Pilgrimage
Commissioner in Saudi Arabia
• Advocate and Solicitor
Singapore
• Singaporean Bank officer in
Singapore
REGISTRATION
• Stamped
• Must be registered at High Court
• Subject to payment of requisite fees
• An exception to the deposit requirement in s 4(1) is where the
instrument is executed and used for the sole purpose of
carrying out transactions in the office of a Registrar of Titles or
a Land Administrator or a Chief Inspector or Senior Inspector
of Mines, provided that the instrument is attested in
accordance with any law on the attestation of such an
instrument.
REVOCATION
• Under Section 5 of the Powers of Attorney Act (PA) : A power
of attorney is a powerful document, its validity will continue in
force indefinitely unless either:
• (i) revoked or renounced (revocation will take place by way of
a notice in writing of the donor's revocation or of the donee's
renunciation and these have been deposited in every office in
which the appointment was required to be deposited); or
• (ii) extinguished by the death of the donor or the donee, the
bankruptcy of the donor, or the donee has become inflicted
with unsoundness of mind or the donor has been adjudged to
be of unsound mind.
TYPES OF POWER OF ATTORNEY
• 1. LIMITED POWER OF ATTORNEY
• L imited time /limited purpose
• Expires upon completion of time or objective of the PA

• 2. UNLIMITED POWER OF ATTORNEY

• Unlimited time and purpose
• Valid until :
• The donor withdraw the power given with the consent from the
donee
• Renounce by the donee
• Either the donor or the donee has died, unsound mind, unsound
mind or adjudge bankrupt
TYPES OF POWER OF ATTORNEY
• 1. REVOCABLE PA
• The donor may revoke the PA at any time without the consent
from the donee
• 2. IRREVOCABLE PA
• The donor can not revoke the PA except
• with the consent from the donee
• Renounce by the donee
• Either the donor or the donee has died, unsound mind, unsound
mind or adjudge bankrupt
PA FOR VALUABLE CONSIDERATION
• The PA is given by the Donor to the Donee subject to some
valuable consideration

• Eg : A borrows RM50,000 from B. As a consideration, A

surrender his land and create a power of attorney in B’s favour
granting B power to develop A’s land until the debt settled.
• The PA is valid until the debt settled.
Cases
• NIK RAHIMI WAN HASSAN & ANOR V NIK RAHMAT WAN
HASSAN [2015] 1 LNS 78

• CERGAS TEGAS SDN. BHD 9IN LIQUIDATION ) V SAP HOLDINGS

BHD & ANOR [2013] 8 CLJ 745
Land scams involving PA
• 1. use of PA that has already expired or cancelled
• 2. use of PA where the donor or donee has already passed
away
• 3. forged PA
• 4. Fake court seal and forged signature
CASES
• JAMALIAH BT HAJI MAHSUDI (suing on her behalf and as
administratrix of the estate of Salamah bt Haji Ali) & Ors v
Sivam al Munusamy & anor [1995] 5 MLJ 250

• Facts : the ownership of a piece of land was transferred to the

second defendant by using a PA which was found to be
defective as one of the Donors had died 3 years prior to the
granting of the PA.

• Held : Since the transfer was affected by means of

fundamentally flawed PA, the transfer would be ineffective
CASES
• MOHD SALIM SAID & ORS V PHENG KEE TANG & ANOR AND
ANOTHER APPEAL [2014] 6 CLJ 485
CASES
• TAN YIN HONG V TAN SIAN SANG & ORS [2010] 2 MLJ 12

Facts : Appellant was the registered proprietor of land which

was charged to the bank (3rd respondent) as security for loans
made in favour of the 2nd respondent.
The 1st respondent had executed the charges in favour of the
bank under a forged PA as the appellant had never signed the PA
Held : the charge was defeasible and liable to be set aside.
FURTHER READINGS
• Noraida Harun “Land scams involving the power of Attorney
in Land dealings in Malaysia”

• Singapore Academy of Law “ Report of the Law Reform

Committee on Power of Attorney (2009)”
THANK YOU