How to check a power of attorney before a deed completes

A power of attorney that looks valid on its face can still be insufficient for the specific transaction at hand. Before a deed completes with one party acting under a power, there are four things the matter file needs to have confirmed.

What makes a power of attorney insufficient for a particular transaction

A power of attorney can be correctly executed and still fail to authorise the specific act being completed. The most common reasons are three:

• The power has expired. Many powers of attorney — particularly those granted for a specific purpose — include an expiry date. If that date has passed, the power cannot authorise completion, however well drafted it may be.
• The power doesn't cover this type of transaction. A general power to manage property doesn't authorise a sale. A power to let premises doesn't authorise a charge. The scope of the authority needs to match the nature of the transaction precisely.
• The donor's authority has lapsed. If the donor has died, lost capacity, or — in the case of a corporate client — the person who granted it no longer holds the necessary authority within that company, the power may no longer have effect. This is particularly relevant for older powers granted by companies or partnerships.

The four things to check in the power before completion

When the matter file reaches the pre-completion review stage, the power of attorney needs to clear four basic checks:

1. Identity of the donor. Who granted the power? That name must match the party identified in the deed being completed. If the transfer deed names the seller as "Margaret Anne Williams" and the power was granted by "Margaret Williams", there is a discrepancy worth resolving before exchange or completion — not after.

2. Identity of the attorney. Who is authorised to act? The person appearing on completion day must be exactly the person named in the power. Their name and the identity document they present must correspond to the details in the power of attorney.

3. Scope of the authority. Does the power actually authorise this specific transaction? Reading the operative provisions — not just the title or the recitals, but the substantive text — is the only way to confirm. A broadly worded power may contain specific carve-outs that exclude precisely the type of transaction being completed.

4. Continued validity. Is the power still in force? If it carries an expiry date, confirm it hasn't passed. If it was granted in relation to a specific matter, confirm that matter hasn't already concluded. If the donor is a company, confirm the representative who executed the power held the necessary authority at the time it was granted.

The risk of the power that "seems sufficient"

In practice, the greater risk isn't the clearly deficient power — it's the one that appears adequate at first reading. A general power that a fee earner interprets as sufficient for a transfer of land, when a close reading of the operative clauses shows otherwise, is the scenario that leads to a defective title and a complaint.

The question of whether broad authority extends to the specific transaction being completed shouldn't be left to memory or assumption. It needs to be in the matter file: a note recording the interpretation, who made it, and which clause it rests on.

How to record the check in the matter file

Checking the power of attorney doesn't end when the review is complete. It ends when the file reflects that it was done:

• The deed or reference number of the power
• Date of execution and, where applicable, expiry date
• Which operative clause covers this specific transaction
• Who carried out the check and when

If a dispute arises later over whether the power was valid at the time of completion, the matter file needs to be able to answer that question without relying on anyone's recollection.

When something in the power isn't clear

If the power of attorney doesn't resolve something cleanly — a clause that appears only partially to cover the transaction, an ambiguous date, a donor who may have lost capacity or died — the review cannot proceed on the assumption that the document is fine. That is the point at which to request further evidence or pause until clarification is in hand.

Completing with an insufficient power, and then having to address a defective title or a formal complaint, carries a cost far greater than a short delay before the matter closes.

If you'd like support with document review and verification in your practice, VerifyAct has tools built for that.