Power Of Attorney, an authority by which one person is empowered to act in the place or as the attorney of another. The one who confers the power is called the constituent or the principal, and the one to whom it is given is called the attorney in fact, that is to say, in factum or for a special purpose, and by way of general distinction from a professional attorney at law. - All persons except those who have not a legal capacity to act for themselves, such as married women and infants, may appoint an attorney in fact. But under the recent acts which give married women separate estates and independent powers over them, they also may, as to such property at least, probably appoint attorneys. All persons who have sufficient intelligence maybe made attorneys in fact, including even some who are disqualified from acting for themselves, such as married women and minors, provided they are of sufficient age and discretion. The power of attorney may for many purposes be created by parol, but usually it is reduced to writing.
If the power contemplates the making of a deed by the attorney, his authority must also be by deed, that is to say, by writing under seal, and must be executed and acknowledged with the same formalities which are required in the case of deeds. - In the interpretation of powers of attorney they are to be construed strictly, and this rule should be kept in view in framing such instruments. The power may be broad or narrow. It may be general, extending to all the affairs of the constituent, or it may be special, and limited to some particular subject or to some particular class of the affairs of the principal. In view of the rule of construction just suggested, a special power should be very explicit, enumerating as minutely as is practicable all the acts which the attorney may perform, although all acts will be sustained which are fairly within the scope and design of the power, even though they are not specifically named. And the power had best be thus special and particular, if possible, rather than general; for the courts incline to construe even general powers narrowly rather than broadly, and even the general clause usually inserted in special powers, as for example, to do all other acts which the constituent might do in the premises, is usually interpreted with reference to the special matters enumerated, and is held to authorize only such acts as are fairly required in the performance of them.
A general authority to make and indorse notes, the power being apparently conferred to enable the attorney to carry on the business of his principal in his absence, would be limited to notes to be used in that business; an authority to collect all demands, and to accomplish a complete adjustment of all the principal's affairs, would not authorize the attorney, in the course and for the purposes of such a general settlement, to give a note in the name of the principal; and it has been held that an authority to endorse notes does not empower the attorney to receive notices of protest, and that a general power given by a member of a firm to his copartner to transact all his business, whether relating to him as a partner or as an individual, does not authorize the attorney to transfer the individual property of the principal to a trustee for the payment of his debts. So a power to sell or convey lands does not give a power to mortgage, nor does it authorize such other dealing with the lands as a license to enter and cut timber.
If the power looks to conveyance of real estate and to the giving of deeds, it should state expressly whether the attorney may exchange or lease or mortgage the lands as well as convey them absolutely; and if the attorney is to give deeds, whether he may give deeds with full covenants; or if he is to make a mortgage, whether he may give with it a power of sale; though it has been held in New York that such an authority is fairly implied in a power to mortgage, because there a power of sale is a usual and virtually essential incident of a good mortgage, but it is not or may not be so in all the states. The power conferred may be a mere naked authority to the attorney, in which case it is revocable at the will of the constituent, and necessarily expires with his death; or it may be coupled with an interest in the attorney, as the phrase is, and in that case the power cannot be revoked by the principal, nor does his death annul it. Thus a mere power to collect debts due the principal is such a naked and revocable power. But if by assignment or by virtue of an agreement with the principal, or in any other way, the attorney has an interest in the very debts themselves, the power is then coupled with an interest, and the attorney cannot be compelled by the constituent to surrender it.
A mere recital in the instrument that it is irrevocable will not make it so, unless one or other of these conditions exist. All conditions in the power must be strictly observed; as for example, if the consent of third persons is required, it must be procured; and if the consent of several persons were required, the death of one of them would prevent the execution of the power, for the consent even of all the survivors is not the consent that the power calls for. - It is a general rule of law that an authority given to one person cannot be delegated by him to another; and accordingly, when it is desired to give an authority to the contrary to the attorney, it must be expressly set forth in the power. Such a power, commonly called a power of substitution and revocation, is usually inserted in powers of attorney. When an attorney having such a power has appointed another attorney in his stead, his death annuls the power of his substitute. The death of the principal cancels the power of the attorney at once. And his power is annulled upon an actual revocation by the principal when the revocation is communicated to him, and as to third persons when it is made known to them. In executing the power, the attorney should act in the name of his principal.
For example, if he gives a deed, the deed should run in the name of the principal, and be signed first with his name, the attorney adding his name and authority afterward.