My husband has cancer, how can I get power of attorney?

How can I get the power of attorney or guardianship for my husband who is suffering from cancer instead of waiting until the last minute? How should I go about it? What rights does it give me regarding making decisions on his behalf?

Dear Reader,

Power of Attorney (POA) is a legal instrument by which one person donates power to another to act on their behalf on specific matters outlined in the document. In layman's language, power of attorney is a document often loaded with clearly defined powers, alongside limitations and exceptions, considered rigid operational parameters, that the agent must be faithful to.

Such a person upon whom certain rights and powers are delegated is not assigned the freedom to conduct any form of business that is not covered in the clauses, which in the contractual realm cannot construe independence of works. This is why the donor of powers is known as the principal, while the actor is an agent.

The power of attorney requires the principal to indicate what it entails expressly. Assuming that everything will be done in the principal's best interest, some of these could include decisions on the management of property, access to finances and related uses, besides pursuance of legal claims and outcomes.

Three forms of powers of attorney exist. The general or unlimited power of attorney is broad. It tends to give the agent a mandate involving or including several related or unrelated tasks over a principal's diverse thematic instructions. This may be on matters such as decisions regarding the development and execution of financial plans, entering and pursuing contractual commitments, and settlement of all bills or handling of insurance premiums, among others. In this case, the agent is not confined to dealing with a single issue but is empowered to act as the principal on multiple platforms and transactions.

The other form is the opposite of the general power of attorney, allowing the agent to only attend to a specific assignment. From this specificity, it draws its name of Special Power of Attorney.

The third is the irrevocable power of attorney. It is one whose character and construction do not anticipate, entertain, or permit reversal. Often, the person given the power to act on behalf of the principal tends to have considerable interest in the matter for which they act. However, as with all forms of power of attorney, its life ceases upon the principal's death.

Several reasons may necessitate the need for one to appoint an agent through powers of attorney. If a person does not seem to have the mental capacity to make objective decisions regarding matters that affect them, a power of attorney could be sought through a court of law. It is particularly significant because previous cases have revealed that such persons tend not to remember, understand, and appreciate the information needed to craft a decision and may lack the ability to communicate.

The other situation may be when someone is indisposed to the effect of sickness or injury that reduces their aptitude to manage particular affairs of their lives, thus necessitating the appointment of an attorney. In other circumstances, a person may delegate their power to take specific actions owing to extended absence from the country where decisions and actions over certain businesses or issues remain constant.

Section 50 of the Registration of Titles Act gives every person who is not a minor or suffering from any known mental illness, referred to in the statute as lunatic, the right to appoint another to act on their behalf in respect to the transfer or other dealing regarding land within the parameters of the Act. This action is carried out on a specific form that lends its legitimacy to the process of execution and attestation.

It is important to note that every power of attorney is revocable. This means the principal can cancel any powers previously granted to an agent. The revocation process involves filling out and registering a specific form, which effectively cancels the agent's powers.

For a power of attorney instrument to be valid, it must have the names of the donor and the appointee. The principal must sign the instrument, and another independent individual must witness their signature without a link to the power of attorney and its intentions. This is in addition to being stamped by payment of stamp duty and then registered under the Registration of Documents Act.

Section 58 of the Registration of Titles Act requires that an instrument such as Power of Attorney be signed and attested to in two ways: If in Kenya, then a judge, magistrate, Registrar of titles, notary public and advocate of the high court of Kenya, the Registrar of the High Court or their Deputy, and administrative officer are eligible to provide and authenticate the signatures.