We recently discussed signing documents and deeds using e-signatures as a result of the COVID-19 pandemic and resulting social distancing. This included in relation to powers of attorney which as a rule must be in writing and executed as a deed. But who has the power to sign them?
What is a power of attorney?
A power of attorney is a deed where one party gives another party the power to act on their behalf, which can be for a general or specific purpose. But that purpose must be clear as they are interpreted strictly. Their most typical use is to enable one party to execute documents on behalf of another.
Who can execute a power of attorney?
If a power of attorney is being given by:
- an individual, it can be executed by:
- the signature of the individual in the presence of a witness who attests the signature; or
- the individual's direction and in their presence and the presence of two witnesses who each attest the signature.
- a company registered in England and Wales, it can be executed by:
- the signature of one director in the presence of a witness who attests the signature; or
- the signature of two authorised signatories (namely two of its directors, or one director and the company secretary who must not be the same person).
A company can grant a power of attorney to another person to sign a power of attorney on its behalf, subject to any restrictions in its articles of association. The company must execute the power of attorney that it is granting as referred to above. This can be useful where someone other than directors is to have responsibility for executing documents, for example an IP manager who may need to sign powers of attorney for foreign attorneys to act on behalf of the company.
In our experience many Intellectual Property Offices (and other third parties) require a power of attorney when dealing with a person acting under one on behalf of a company if the capacity is not that of an obvious statutory officer, for example a director. This can be usually be proved by producing a certified copy rather than the original power of attorney.
Please note that for overseas companies, the formalities for executing the power of attorney are governed by additional regulations.
If you have any queries regarding the signatory requirements for powers of attorney, or would like general guidance regarding powers of attorney, please contact us.
This blog was written by Tara Cusack.
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