Sometimes, a person might not be able to take care of certain legal, financial, or personal matters on their own. When this happens, they can grant permission to someone they trust to act on their behalf by using a legal document called a power of attorney. This lets the chosen person make decisions, sign papers, manage healthcare, or even go to court on their behalf.
This article explains how powers of attorney work in Ghana, how to set one up properly, and what legal issues to keep in mind. The rules for powers of attorney are set out in the Powers of Attorney Act, 1998 (Act 549), and have been further shaped by court rulings.
What is a Power of Attorney?
A power of attorney is an official document that lets one person (called the attorney or donee) act for another person (called the principal or donor). It can be used for many different reasons and can be customized to fit specific situations.
A person can choose just one attorney or several people to work together. Even a company can give or receive a power of attorney.
Legal Requirements for Creating a Valid Power of Attorney
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According to Ghana’s Powers of Attorney Act, 1998 (Act 549), a power of attorney must follow certain rules to be valid:
- The person giving the power (the principal) must sign the document in front of one witness.
- If the principal can’t sign themselves, they can ask someone else to sign for them. This must be done while the principal is present and in front of two witnesses.
- The required witnesses must also sign. One witness is enough if the principal signs it themselves, but two are needed if someone else signs for them.
- The person receiving the power (the attorney) must also sign the document, and two people must witness their signature.
While not required by law, it’s a good idea to also include:
- The full names, addresses, and ID details of everyone involved
- How long the power of attorney will last
- A clear explanation of what powers are being given
- A statement showing that the principal wants to give this power
Adding these details helps avoid confusion and makes it easier to carry out the tasks given.
Why It’s Important to Follow the Legal Rules
Just having a power of attorney doesn’t mean it’s automatically valid. You must follow the proper legal steps, or the document won’t be accepted.
It’s also important to know that using an invalid power of attorney is against the law. If someone (the donee) knows the power is not valid but still uses it and harms the person who gave it (the principal), they could be fined up to GHS 100 or even sent to prison for up to six months.
What a Power of Attorney Cannot Do
Even though a power of attorney gives someone a lot of authority, there are some things it cannot be used for. These include:
- Writing or canceling a will
- Taking exams for the person who gave the power
- Getting married or doing things only a husband or wife can do
- Doing professional work that only the person themselves is allowed to do (like a priest, lawyer, teacher, or doctor can’t pass on their job duties)
- Doing anything the person giving the power wouldn’t be able to do themselves
Cancelling a Power of Attorney
The person who gave the power (the principal) can cancel it at any time. Since it’s their choice to give someone else authority, they can take it back by clearly saying they want to cancel it.
Responsibility for the Attorney’s Actions
Usually, the principal is responsible for what the attorney does on their behalf. If the principal agrees that someone else can act for them, then they are also responsible for what that person does. However, if the attorney does something they were never allowed to do, the principal is not responsible for those actions.
How to Stay Protected
For the person giving the power (the principal):
They can protect themselves by:
- Writing out the details in the power of attorney—this includes names, addresses, how long it lasts, and what the attorney is allowed to do
- Cancelling the power of attorney in a clear way and telling the attorney about it as soon as possible
For the person receiving the power (the attorney):
They can stay safe and avoid problems by:
- Only doing what the power of attorney allows
- Not going beyond the powers they were given
- Giving regular updates to the principal
- Acting carefully and responsibly
- Staying away from situations where their interests might clash with the principal’s
- Not taking secret payments or rewards
- Asking the principal before letting someone else act on their behalf
How Others Can Stay Protected When Dealing with an Attorney
If someone is doing business with an attorney (a person acting for someone else), they can protect themselves by:
- Checking carefully to make sure the attorney has the right to act
- Asking to see the power of attorney document
- Making sure the attorney is only doing things they’re allowed to do
If they don’t take these steps and the attorney didn’t have the power to act, the original person (the principal) might not be responsible. In that case, the third party may have to deal with the attorney directly.
Final Thoughts
A power of attorney is a useful tool in today’s world. It helps people take care of important matters even when they can’t be there in person. But to use it properly and legally, everyone involved needs to understand the rules.
One more thing: as more things are done online, it may be time to update the rules so that witnesses don’t always have to be there in person. Allowing people to witness documents remotely could make the process easier and more modern.
Alhassan Aboagye on behalf of OSD and Partners. [email protected]
