What is the effect of the Irrevocable Power of Attorney when the donor of the Power of Attorney dies?

Put it in another way, can the donee of the power of attorney (PA) transferred the land to a third party or to himself pursuant to the PA after the donor died?

It is pertinent to look for section 6 of the Powers of Attorney Act (POAA).

Section 6. Powers of attorney given for valuable consideration

(1) If a power of attorney, given for valuable consideration, is in the instrument creating the power expressed to be irrevocable, then, in favour of a purchaser—

(a) the power shall not be revoked at any time, either by anything done by the donor of the power without the concurrence of the donee of the power, or by the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power; and

(b) any act done at any time by the donee of the power, in pursuance of the power, shall be as valid as if anything done by the donor of the power without the concurrence of the donee of the power, or the death, marriage, mental disorder, unsoundness of mind, or bankruptcy of the donor of the power, had not been done or happened; and

(c) ... ...

From section 6 POAA, it seems that the donee can transfer the land pursuant to the PA and the death of the donor will not affect the power of the donee to do so. However, the pre-conditions are the donee must be a purchaser who has paid for the purchase price over the land and the PA is expressed to be irrevocable. 

Be that as it may, the matter does not end here.

As the issue concerned land matter, it is necessary to have a look at section 311 of the National Land Code (NLC) as well. 

Section 311. Enquiries by Registrar.

In determining the fitness for registration of any instrument to which section 309 applies, the Registrar -

(a) may, without prejudice to the generality of his powers under section 302, require from the attorney or his principal a statutory declaration, or other evidence upon oath or affirmation, that the power of attorney was, at the material time, still in force; but

(b) shall not, in the exercise of those powers, require proof of the due execution of any power of attorney where the document delivered to him pursuant to paragraph (a) of sub-section (1) of the said section 309 was an office copy thereof.

From the above section, the Registrar has power to require the attendance of the donor or his solicitor to give a attested statutory declaration that the PA is still in force or valid. Thus, if the registrar did require such attested declaration and the donor was dead, the donee will have to find the donor's solicitor who has prepared the PA to attest that the PA is still in force. 

When the registrar did not require such attestation, then the donee can proceed to execute and present the instruments of dealing such as Memorandum of Transfer (MOT) for registration. 

The execution of the instruments of dealing is provided in section 210 NLA. 

Section 210. Execution of instruments of dealing.

(1) Every instrument effecting any dealing under this Act shall be executed in accordance with the following provisions of this section by each of the parties and the parties consenting thereto or, in the case of any particular party, by a person acting on his behalf under a valid power of attorney or on the authority of any written law (including this Act) or the order of any court.

The donee of the PA can execute the instruments of dealing provided that the PA is valid. It seems that this section also applies if donee transfers the land to himself pursuant to the PA.

For presentation of instruments of dealing, it is necessary to look into section 292 NLA. 

Section 292. Instruments capable of being registered, and method of presentation therefor   

(1) The following instruments may be registered under this Part, and may be presented to the Registrar for that purpose in accordance with the provisions of sub-section (2) -

(a) any transfer under Part Fourteen of land, of an undivided share in land, or of any lease, sub-lease or charge;

(b) ... ...

(4) The death of any person by or on behalf of whom any instrument of dealing has been executed shall not affect the validity thereof, and any such instrument may, accordingly, be presented for registration under this Part as if the death had not occurred.

The effect of subsection (4) can be seen in the case of Dan Sin Wah v. Chan Hai Swee [1951] 1 MLJ 189 where Briggs J held that "death of any person" and "executed by" in section 85(ii) Land Code was referring to the donor of the PA and not the donee. 

In that case, His Lordship held that if the fact of the death of the donor was brought to the notice of the Registrar, the instruments of dealing shall not be registered. This was pursuant to section 85(ii) Land Code. 

Section 85(ii) Land Code provides that "the death of any person prior to the presentation of any instrument executed by him shall prevail so as to prohibit registration of such instrument, and such instrument if registered shall be void". 

From section 85(ii) Land Code, it seems that when the donee presents for registration of the instruments of dealing, the donor of the PA must alive even though the instruments have been executed by the donor himself. 

However, in section 292(4) NLC, there are the words "on behalf of whom" which did not appear in section 85(ii) Land Code.

In my view, the words "on behalf of whom" refers to the donee of the PA. The effect of it is as long as the donee of the PA is still alive, he can present the instruments of dealing for registration. The death of the donor is immaterial. 

In conclusion, the effect of the irrevocable PA is still the same and valid notwithstanding that the donor of the PA has died. In other words, the donee can transfer the land to himself or third party pursuant to the PA, POAA and NLC. However, such power is subject to section 311 of the NLC where the Registrar may request for a statutory declaration from the donor or his solicitor concerning the validity or enforceability of the PA.