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Report No. 68

Section 3.

3.5. We now come to section 3, which indemnifies the holder of a power of attorney for acts done by him in good faith before notice of death of grantor. It is base1 on section 7 of the Conveyancing Act, 1881, and is, in fact, a copy of it, That section of the English Act was replaced, so far as England is concerned, by section 124 of the Law of Property Act, 1925, which was in these terms :

"124. Payment by attorney under power without notice of death, etc.

(1) Any person making any payment or doing any act, in good faith, in pursuance of a power of attorney, shall not be liable in respect of the payment or act by reason that before the payment or act the donor of the power had died "or become subject to disability or bankrupt, or had revoked the power, if the fact of death, disability, bankruptcy, or revocation was not at the time of the payment or act known to the person making or doing the same.

(2) A statutory declaration by an attorney to the effect that he has not received any notice or information of the revocation of such power of attorney by death or otherwise shall, if made immediately before or within three months after any such payment or act as aforesaid, be taken to be conclusive proof of such non-revocation at the time when such payment or act was made or done.

Where the donee of the power of attorney is a corporate aggregate, the officer appointed to act for the corporation in the execution of the power may make the statutory declaration in like manner as if that officer had been the donee of the power.

Where probate or letters of administration have been granted to any person as attorney for some other person, this section applies as if the payment made or acts done under the grant had been made or done under a power of attorney.

"(3) This section does not affect any right against the payee of any person interested in any money so paid; and that person shall have the like remedy against the payee as he would have had against the payer if the payment had not been made by him.

(4) This section applies to payments and acts made and done before or after the commencement of this Act, and in this section 'power of attorney' includes a power of attorney implied by a statute'.

(This was replaced in part by section 5 of the 1971 Act)."

The English Act is more elaborate than the section in our Act-see particularly the portion relating to "statutory declaration" However, it is not necessary to make in our Act such elaborate provisions.

1. See now section 5, Powers of Attorney Act, 1971.

The Powers of Attorney Act, 1882 Back

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