Power of Attorney Abuse in Jamaican Property Sales: When Agents Act Beyond Their Authority

• A power of attorney allows a donor to authorise another person to deal with their property.
• A POA is automatically revoked upon the donor’s death; dealings after death are void.
• Fraudsters have procured POAs from elderly or incapacitated owners through undue influence.
• The NLA requires a certified copy of the POA when registering instruments executed under it.
• A donor can revoke a power of attorney at any time by executing and registering a deed of revocation.

A power of attorney is a document under which one person — the donor — grants another person — the attorney-in-fact or donee — authority to act on their behalf in specified matters. In the context of Jamaican property law, a power of attorney is commonly used where the registered owner of land is overseas, incapacitated, or otherwise unable to execute instruments personally. When properly granted and used within its terms, a power of attorney facilitates legitimate transactions. The abuse of this instrument has, however, been a recurring vehicle for property fraud in Jamaica. Fraudsters have induced elderly or mentally vulnerable owners to execute broad powers of attorney without understanding their implications, then used those instruments to sell or mortgage properties without the true owner’s knowledge or consent. In other cases, instruments have been executed purportedly under a power of attorney after the donor has already died, which is void as a matter of law because a power of attorney is automatically revoked by the donor’s death.

How POA Fraud Operates and Warning Signs

Power of attorney fraud in property transactions typically follows recognisable patterns. A person with access to an elderly, overseas, or incapacitated owner approaches them — or their family members — and obtains execution of a broad power of attorney that purports to authorise the donee to sell, mortgage, lease, or otherwise deal with the owner’s property. The power may be honestly explained to the owner as being for a limited purpose, while in fact being drafted in broad terms. It may be executed before a JP who fails to verify that the donor understands what they are signing. Once registered, the instrument is then used to execute a transfer or mortgage in favour of a buyer or lender who may be in collusion with the fraudster or who may be an innocent third party. The NLA will register an instrument executed under a power of attorney if the instrument is properly presented, without investigating whether the underlying power was properly granted.

Revocation, Verification and Legal Protections

A property owner who has granted a power of attorney and wishes to revoke it should execute a deed of revocation and register it at the NLA promptly. Once a revocation is registered, any subsequent purported dealings under the revoked power will not be accepted for registration. Family members of elderly or incapacitated owners who are concerned about the potential misuse of a power of attorney should seek legal advice about the options available, which may include lodging a caveat against dealings, applying to the court for a declaration as to the validity of the instrument, or reporting concerns about undue influence to the Jamaica Constabulary Force. Buyers and lenders dealing with an attorney-in-fact should verify that the power of attorney is current, has not been revoked, and specifically authorises the type of dealing being contemplated. They should also independently verify that the donor is alive, where possible, before completing any transaction.

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