Certifying powers of attorney

  • Author : Amanda Edwards
  • Date : May 2011
ABOUT THE AUTHOR: Amanda Edwards TEP is an Associate at Boodle Hatfield

When an attorney is appointed by an individual, proof is needed that the attorney has the authority to act. It is impractical for the attorney to have to keep producing the original power of attorney so the law has provided for copies that meet certain requirements for certification to be accepted in place of the original document.

In the past this was achieved by depositing the original with Central Office of the Supreme Court who would provide you with office copies. Since the Powers of Attorney Act (PAA) 1971 came into force, no such depositing is required and it is possible to use a certified copy, and multiple certified copies can be used.

The requirements for a certified copy of a power of attorney (whether an ordinary power, an enduring power or a lasting power of attorney) are set out in s3 PAA 1971:

‘3. Proof of Instruments Creating Powers of Attorney:

1The contents of an instrument creating a power of attorney may be proved by means of a copy which –
ais a reproduction of the original made with a photographic or other device for reproducing documents in facsimile; andbcontains the following certificate or certificates signed by the donor of the power of by a solicitor [authorised person] or stockbroker, that is to say –
1a certificate at the end to the effect that the copy is a true and complete copy of the original; and2if the original consists of two or more pages a certificate at the end of each page of the copy to the effect that it is a true and complete copy of the corresponding page of the original.’

An authorised person for these purposes effectively means a notary public.

This section does not repeal the provisions in s4 Evidence and Powers of Attorney Act 1940, which provides for proving powers of attorney in Scotland and Northern Ireland, by registering them in the books of council and session, or by depositing them in the proper office of the Court of Judicature respectively.

It is also possible for a certified copy of the power that complies with the criteria above to be used to create another valid certified copy. Section 3(2) PAA 1971 states that:

‘Where a copy of an instrument creating a power of attorney has been made which complies with subsection (1) of this section, the contents of the instrument may also be proved by means of a copy of that copy if the further copy itself complies with that subsection, taking references in it to the original as references to the copy from which the further copy is made.’

A chain of copies can therefore be created so long as each is properly certified as a true and complete copy.

The Land Registry sets out its own specific requirements for copies in its useful Practice Guide 9 (Powers of Attorney and Registered Land). The Land Registry will specifically check that:

  • the power was validly executed as a deed;
  • it was still in force at the date of the document in question;
  • it authorises the attorney to take the action in question; and
  • where necessary, was made under the correct statutory provisions.

The Land Registry will accept as evidence any of the original power of attorney, a sufficient copy of the power (i.e. a copy certified in accordance with PAA 1971 or an office copy), or evidence submitted in ‘Form 1’. The Land Registry will retain the evidence submitted, so it will normally be better to send a certified copy or to use Form 1.

Form 1 is a document signed by a conveyancer certifying that:

  • the power of attorney is in existence;
  • the date of the power;
  • the power is validly executed as a deed and authorises the attorney to execute the document on behalf of the donor of that power; and
  • the conveyancer holds either the instrument creating the power or a copy of the power by means of which its contents may be proved in accordance with the relevant statutory requirements.

The Land Registry will, however, often accept copies of a power of attorney that do not conform fully to the requirements in s3 PAA above. In practice a photocopy that has been certified by a conveyancer to be a true copy of the original power will be accepted, unless there is some doubt regarding the power.

Where a power of attorney was executed more than 12 months previously, a purchaser or a body who will be relying on the power still being in force is entitled to request evidence that it has not been revoked. In the case of the Land Registry, such evidence (if requested) must be in Form 2.


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