A Review on Irrevocable Power of Attorney: Malaysia and United
Kingdom Compared
Nurazlina Abdul Raof, Nuraisyah Chua Abdullah
Faculty of Law, Universiti Teknologi MARA, 40450 Shah Alam, Selangor, Malaysia
Keywords: Fixed Time, Irrevocable, Practicality, Power Of Attorney,Valuable Consideration.
Abstract:
An irrevocable power of attorney is an exception to the general rule that a power of attorney is revocable. It
is applicable if granted in the interest of a donee or a third party for instance, where the donor owes an
obligation to the donee. Many statutes, including Malaysia provide for the irrevocability of powers of attorney
where termination is only possible with the donee’s consent. It will not be revoked by the death, incapacity
or bankruptcy of the donor. One of the issues relating to the irrevocable powers of attorney is its practicality,
i.e. to what extent that it will be strictly complied with. As an example, whether the donor or his successors-
in-title, in the event of the death or incapacity of the donor, will comply with the arrangement. Using the
doctrinal approach, this paper examines the concept of the irrevocable powers of attorney under the POA Act
and analyses its application in Malaysia in comparison with the United Kingdom (“UK”) as the POA Act
originates from the UK. This paper finds that irrevocable powers of attorneys are indeed practical but only
when the donee’s interest is still subsisting, to protect the interest of the donee and/or purchaser.
1 INTRODUCTION
A power of attorney is a written delegation of powers
to another to act (Sidambaram a/l Torosamy v Lok
Bee Yeong (MLJU 1828, 2016). It is an instrument
normally resorted to by men in order to ensure matters
are being attended to when they do not have the time,
knowledge or expertise to perform themselves.
Considerable time and energy can undeniably also be
saved in this way. It is said that the law relating to
powers of attorney forms part of the general law of
agency (Charles Lim Aeng Cheng et al., 2009). Under
the agency concept, an agent is a person who acts for
a principal whether by express or implied consent.
Under the power of attorney, the extent of the
delegated power and authority of the agent will be
clearly stipulated. It authorises the agent to act for the
principal, who will be liable to third parties, if the
agent acts within the scope of his authority (S.
Parmeswaran, 1999). When the power is given for a
valuable consideration and expressed to be
irrevocable, the power of attorney is protected from
revocation by the principal without the concurrence
of the agent, or by the death, disability or bankruptcy
of the principal. The powers of attorney legislations
in some jurisdictions, for instance, England, New
South Wales, Tasmania and Hong Kong provide for
the irrevocability of particular types of power of
attorney. West Malaysia also adopts a similar stance,
as can be seen in Section 6 and 7 of the Powers of
Attorney Act 1949. Section 6 provides for the
irrevocable nature of power of attorney given for
valuable consideration and expressed in the
instruments creating the powers to be irrevocable.
Until and unless the agent or donee concurs to
terminate the power of attorney, the power of attorney
continues to subsist. Under Section 7, the power of
attorney is irrevocable for a fixed time and can either
be given with or without consideration. An
irrevocable power of attorney is neither determined
by the death, marriage, mental disorder, unsoundness
of mind or bankruptcy of the principal, nor, where the
principal is a body corporate, by its winding up or
dissolution. One of the relevant issues which
concerns the irrevocable power of attorney is its
practicality, namely to what extent that the
irrevocable powers of attorney instrument will be
strictly complied with. Under both Sections, the agent
and the purchaser will not, at any time, be injuriously
affected by the facts of the act or event which would,
but for this clarification, give rise to a revocation (S.
Parmeswaran, 1999). Most literatures discuss on the
availability of irrevocability of powers of attorney
Raof, N. and Abdullah, N.
A Review on Irrevocable Power of Attor ney: Malaysia and United Kingdom Compared.
DOI: 10.5220/0010054203310340
In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 331-340
ISBN: 978-989-758-482-4
Copyright
c
 2020 by SCITEPRESS – Science and Technology Publications, Lda. All rights reserved
331

and there is lack of comprehensive discussion on the
practicality of the irrevocability of powers of attorney
in Malaysia which warrants for the discussion of this
article.
2 MATERIALS AND METHODS
This paper adopts a doctrinal approach and seeks to
examine the concept of the irrevocable powers of
attorney under Sections 6 and 7 of the Powers of
Attorney Act 1949 and analyses the extent of its
application in West Malaysia in comparison with
Section 4 of the United Kingdom (“UK”) Powers Of
Attorney Act 1971 and Sections 126 and 127 of the
UK Law of Property Act 1925. This comparison is
made because Sections 6 and 7 appears to be
modelled after Sections 126 and 127 of the UK Law
of Property Act 1925 with slight modifications and
the latter have since been replaced by the UK Powers
Of Attorney Act 1971 as a result of a comprehensive
review by the Law Commission for England and
Wales pursuant to the Working Paper on Powers of
Attorney (Working Paper No 11, June 1967) (Charles
Lim Aeng Cheng et al., 2009), where Section 4
(together with Section 5(3)) of the Powers of
Attorney Act 1971 was enacted to replace Sections
126 and 127 of the UK Law of Property Act 1925
with modifications (Charles Lim Aeng Cheng et al.,
2009).
3 RESULTS AND DISCUSSION
3.1 Power of Attorney—Scope and
Extent of Power
The Kuala Lumpur High Court in Muniandy a/l
Nadasan & Ors v Dato' Prem Krishna Sahgal & Ors
(Dato'Jeyaraj a/l V Ratnaswamy, intervener) [2017]
MLJU 2047 quoted the definition of power of
attorney in the case of Wee Tiang Peck v Teoh Poh
Tin 1 (MLJ 446, 1995) where it was stated that a
'power of attorney' is defined as a formal instrument
by which one person empowers another to represent
him or act in his stead for certain purposes. Such
instrument must be strictly construed according to
well recognized rules. Once a power of attorney is
created, the relationship of principal and agent arises
between the donor and the donee of the power. In no
case could the authority of the donee exceed the
power of the donor to act on his own behalf.In all
cases, the donee of the power owes the donor duties
of a fiduciary character, for example to keep accounts
of all transactions that transpired and must also be
prepared to produce them to the donor at all times, to
disclose any conflict of interest and not to receive any
secret commission or bribe. If a person is acting under
the power of attorney, he should as a general rule, act
in the name of the donor of the power and likewise if
he is authorised to sue on the donor's behalf, the
action should be brought in the donor's name. As
regards the authority of the agent, it cannot exceed the
limit of authority granted by the principal to the agent.
An attorney cannot question the actions of its
principal. It is very clearly stated that the authority of
the agent whether given by power of attorney, or
informally, even if for consideration, and whether or
not expressed to be irrevocable, is revocable without
prejudice to the fact that such revocation may be
wrongful as between principal and agent. An agent
has no locus standi to take action against the principal
save for instances of wrongful revocation of authority
and even then the action is only for breach of contract
(Affluent Sdn Bhd v Sumathi K Appukuttan Pillai &
Anor 8 (CLJ 71, 2001). A Power of Attorney can be
by a document by itself or Power of Attorney clause
found in an agreement (Kenanga Investment Bank
Bhd v Swee Joo Bhd & Ors and another appeal
(MLJU 2095, 2017). A donor may choose to grant a
revocable or irrevocable power of attorney but should
he desire to create an irrevocable power of attorney
that desire should be expressly provided for within
the deed itself (Sidambaram a/l Torosamy v Lok Bee
Yeong (MLJU 1828, 2016).
3.2 Irrevocable Powers Of Attorney In
West Malaysia
Section 6 and Section 7 of the Powers of Attorney Act
1949 are relevant when discussing irrevocable power
of attorney. Section 6, which provides for the
irrevocable nature of powers of attorney given for
valuable consideration and expressed in the
instruments creating the powers to be irrevocable, is
modelled after the repealed Section 126 of the UK
Law of Property Act 1925 (Charles Lim Aeng Cheng
et al., 2009). Section 7, which provides for the
irrevocable nature of powers of attorney given for
valuable consideration or not and expressed in the
instruments creating the powers to be irrevocable for
a fixed time, resembled the repealed Section 127 of
the UK Law of Property Act 1925 except that the
latter provides for the irrevocability of not more than
one year. The irrevocability of the power of attorney
exists in both Section 6 and Section 7, with few
differences. In Section 6, the power of attorney must
iN-LAC 2018 - International Law Conference 2018
332

be given for valuable consideration. This is not so
under Section 7 as in that Section, the power of
attorney can be with or without consideration.
Further, the irrevocability of the power of attorney in
Section 6 must be present at all times whereas the
power of attorney must only be irrevocable for a
specific timeframe pursuant to Section 7.
The special status of a power of attorney given as
security, for valuable consideration and expressed to
be irrevocable is sometimes also termed a power
coupled with an interest or an irrevocable power (Lim
Eng Chuan Sdn Bhd v United Malayan Banking Corp
& Anor 1 (MLJ 486, 2011). While the interest of the
donee subsists, the donor cannot revoke the power
without the donee's consent, and the power will
continue in full force and effect notwithstanding
events, which would otherwise cause the power to
terminate. Authority coupled with an interest being
irrevocable is where an agreement is entered into on
a sufficient consideration, whereby an authority is
given for the purpose of securing some benefit to the
donee of the authority, therefore such an authority is
irrevocable.
The rationale for the principle that such an
irrevocable authority is neither cancelled or revoked
by the death, mental capacity or insolvency of the
principal, nor, where the principal is a body corporate,
by its winding up or dissolution rule is that what is in
issue is a proprietary right, which once granted, is
unaffected by loss of capacity of the grantor
(Bowstead and Reynolds on Agency, 2006). Here, the
agent uses the authority actually not for the benefit of
the principal but also for his own benefit. His own
interests are also paramount. Both parties have
interests in the power of attorney. An example is a
power given to a creditor to sell land and to retain the
proceeds to repay himself (Gaussen v Morton (1830)
10 B&C 731). As long as the interest of the agent
subsists, the power of attorney will remain
irrevocable. This in fact is to the benefit of the
agent/donee and indeed different from the concept of
agency in the normal sense, where the agent must act
in the interests of the principal only, unless otherwise
agreed (Bowstead and Reynolds on Agency, 2006).
This is because an agent acting under a power of
attorney is in a fiduciary relationship that imposes the
obligations and duties of a trustee upon the attorney
(Nasser Hamid and Pushpa Menon, 2013). An
irrevocable power of attorney is void, invalid and
ineffective in two circumstances, firstly, when it is
expressed to be irrevocable where there is no valuable
consideration, which contravenes Section 6 of the
Powers of Attorney Act 1949 and secondly, when it
is expressed to be irrevocable without any fixed
period of time being stated therein for its applicability
(Affluent Freight Sdn. Bhd v Sumathi K Appukuttan
Pillai 8 (CLJ 71, 2011) &Peringkat Istimewa Sdn
Bhd v Pua Kim An & Ors (MLJU 1263, 2016). This
is indeed so, as it runs counter of what is irrevocable
power of attorney as stated under either Section 6 or
Section 7. Thus, if the agent was just a gratuitous
agent of the principal and had never paid any
consideration to the principal for the authority given
to him, a power of attorney is actually a revocable one
(Peringkat Istimewa Sdn Bhd v Pua Kim An & Ors
(MLJU 1263, 2016).
3.3 Judicial Decisions on Irrevocability
of Power of Attorney
3.3.1 What Is “valuable consideration”
Valuable consideration has been defined as some
right, interest, profit, or benefit accruing to the one
party, or some forbearance, detriment, loss, or
responsibility given, suffered, or undertaken by the
other at his request. It is not necessary that the
promisor should benefit by the consideration. It is
sufficient if the promisee does some act from which a
third person benefits, and which he would not have
done but for the promise'(Tan Chong Keat Sdn Bhd v
Pintar Pintas Sdn Bhd 4 (MLJ 201, 2005) and
Malaysia Building Society Bhd v Johore Mining and
Stevedoring Company Sdn Bhd & Anor 5 (CLJ 82,
2004). The Court in Hj Fauzi Hj A Majid v Kenangan
Erat Sdn Bhd 8 (CLJ 230, 2005) held that upon a
proper construction of Section 6(1) (a) of the Powers
of Attorney Act 1949, valuable consideration is an
essential element in order to sustain the irrevocability
of a power of attorney. The basic feature of the
requirement of consideration lies in the idea of
reciprocity in that 'something of value in the eye of
the law' must be given for a promise in order to make
it enforceable as a contract. In so far as irrevocability
of power of attorney given for valuable consideration
expressed to be irrevocable is concerned, authorities
has held that it cannot be revoked without the
concurrence of the donee (Liew Mok Poh @ Liew For
Chen & Chong Yat Min v Balakrishnan a/l
Muthuthamby 1 CLJ 993, 1990). In order to
determine the irrevocable nature of the power of
attorney, the High Court in the case of Sidambaram
a/l Torosamy v Lok Bee Yeong (MLJU 1828, 2016)
scrutinised all evidence of debts of the deceased as
donor to the plantiff as a donee and came to a
conclusion that although the plaintiff did give
consideration, that consideration was insufficient to
A Review on Irrevocable Power of Attorney: Malaysia and United Kingdom Compared
333

render the power of attorney given by the deceased to
the plaintiff irrevocable.
Therefore, in order for a power of attorney to be
irrevocable, the agent must provide valuable
consideration to the principal under Section 6 of the
Powers of Attorney Act 1949. Nevertheless, this is
not the position under Section 7 of the Powers of
Attorney Act 1949 as under the Section, valuable
consideration is merely an option. Under the Section,
the irrevocability is also only for a fixed time, where
once the period of irrevocability has expired, the
power continues as a revocable power of attorney.
What this means is that the irrevocable powers of
attorney can be given without any valuable
consideration at all from the agent but the operation
of the irrevocability is limited to a certain time frame
only. It can be revoked by the principal without the
consent of the agent once the irrevocability period
expires. The Law Commission for England and
Wales in their Working Paper on Powers of Attorney
(Working Paper No 11, June 1967) (“the Law
Commission”) in reviewing the amendment to
Section 126 and Section 127 of the United Kingdom
Law of Property Act 1925 (similar to Sections 6 and
7)stated that where the power was not given for
valuable consideration, the irrevocability was merely
a conveyancing device to protect a purchaser from the
donee. The Law Commission in the process of
deliberation stated that it should be redrafted to make
it clear that the powers of attorney granted by way of
security could be made irrevocable in the truest and
fullest sense either indefinitely or for a period; and in
other cases, no question of irrevocability would arise
as between donor and donee, but in the interests of
conveyancing if a power of attorney is expressed to
last for a fixed period not exceeding one year, those
having dealing with the donee during that period
should be entitled to assume that the power has not
been revoked (Charles Lim Aeng Cheng et al., 2009).
3.3.2 Donee
Section 6(1)(c): In Relation to Interest of
Purchaser.
In Tai Swee Kian v Tay Boo Thiah @
Tai Boo Ting & Ors (MLJU 1013, 2011) the donor
granted an irrevocable power of attorney to the donee
to sell shares of donor in several companies. The
power of attorney specified that it was given for
valuable consideration. The donor then sold the
shares specified under the power of attorney to third
party. The donee argued that under the power of
attorney, he had the right to sell the said shares.
Hence, the sale transaction between the donor and the
third party was void as it was entered into
notwithstanding the existence of the power of
attorney and without the concurrence of the Plaintiff
as the donor. The High Court analysed Section
6(1)(c), "(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 -neither the donee of the power, nor the
purchaser, shall at any time be prejudicially affected
by notice of anything done by the donor of the power,
without the concurrence of the donee of the power, or
of the death, marriage, mental disorder, unsoundness
of mind, or bankruptcy of the donor of the power.",
and stated that the section appears to be aimed at
according protection to a purchaser who has
purchased or obtained property pursuant to an
irrevocable power of attorney given for valuable
consideration. This means that if the Plaintiff, as the
donee having the power of sale of the subject shares,
had in fact sold the same to a third party, and then that
sale having been effected pursuant to an irrevocable
power of attorney for valuable consideration, it
cannot be set aside or affected by any subsequent
purported sale by the donor without the consent of the
donee. In other words, the equity of the third party
would prevail over any purported sale by the donor
without the express consent of the donee. However,
in this case, the donee as Plaintiff did not, and has not,
since the grant of the power of attorney exercised the
power of sale under the power of attorney. In other
words, the Plaintiff as the donor has not sold the
subject shares to any third party. There was nothing
in the power of attorney that prohibits the principal
from conducting a sale of the subject shares too, as
the power of attorney is not drafted so as to divest the
donor completely of the power to sell the subject
shares. Section 6(1)(c) does not prescribe that the
effect of an irrevocable power of attorney given for
valuable consideration has the effect of divesting
completely the right of the donor to deal with the
subject property in any way. What the section
prescribes is that when a power of attorney has been
exercised and a third party has acquired the subject
property, such a transaction will not be vitiated by any
act of the donor purporting to sell the property
without the consent of the donee. In this case, there
has been no exercise of the right of sale by the donee,
thus section 6(1)(c) does not come into play.
Thus, it can be seen that the irrevocable power of
attorney relates to the purchaser, namely if the donee
has sold to a purchaser the said shares, then the
interest of the donee is protected, so as the interest of
the purchaser from him. But in this case, the donee
has not exercised the power and the donor at the same
time did not expressly state that only the donee has
iN-LAC 2018 - International Law Conference 2018
334

the right to sell the said shares to the exclusion of the
donor. This means the donor can still exercise his
right to sell his own shares. Therefore, even though
the power of attorney is irrevocable, it does not mean
that the donor relinquishes his rights as regards the
shares. But, if the third party purchaser has bought the
said shares from the donee, the irrevocability of the
power of attorney will have to be strictly complied
with. Another similar principle can be seen in the
judgment of the Court in Muniandy a/l Nadasan &
Ors v Dato' Prem Krishna Sahgal & Ors
(Dato'Jeyaraj a/l V Ratnaswamy, intervener) (MLJU
2047, 2017) where unless the power of attorney
expressly provides that the principal as donor has
divested completely all rights of sale to the agent as
donee, the existence of the irrevocable Power of
Attorney which states that the agent has the authority
to deal with the property of the principal does not
preclude or prohibit the principal from exercising the
power of sale of his property. There is also no issue
of a third party acquiring the property from the donee
under the irrevocable Power of Attorney given for
valuable consideration.
The Law Commission stated that subsection
(1)(iii) of both Sections 126 and 127 of the UK Law
of Property Act 1925 (similar to Sections 6(1)(c) and
7(1)(c)) appeared to afford protection to the donee
even though he was not a purchaser. He is one who
has an authority coupled with an interest. The Law
Commission found this to be absurd. The Law
Commission stated inter alia:
Can it be suggested that if X can persuade a
gullible millionaire to sell him his ‘irrevocable’
power of attorney for £100, X can then continue to
operate as his attorney notwithstanding his attempts
to revoke any authority or notwithstanding his death
or insanity? If a solicitor is appointed attorney of his
client under a power expressed to be irrevocable for
a period of one year, can it be suggested that the
solicitor is entitled to ignore the client’s revocation,
death, disability or bankruptcy during that year?
Such a suggestion runs contrary to professional belief
and practice which assume that the so-called
‘irrevocability’ under section 127 is a conveyancing
device to enable the attorney to operate the power
during the year without having to produce evidence
that the power has not been revoked. Any suggestion
that it entitles the attorney to continue to act
notwithstanding revocation by the donor is quite
contrary to what most solicitors have told their
clients.
Interest of Donee per se. In dealing with the issue
as to whether the donee in Muniandy a/l Nadasan &
Ors v Dato' Prem Krishna Sahgal & Ors (Dato'
Jeyaraj a/l V Ratnaswamy, intervener) (MLJU 2047,
2017) has legal interest in the property of the donor,
pursuant to the argument of the donee that the Power
of Attorney and the Letter of Acknowledgment of
Debt executed by the donor gives absolute discretion
to the donee to deal (sell, transfer, redeem) with the
property, and it was given with valuable
consideration and irrevocable, the Court stated that
there was no charge or debenture created over the
property in favour of the donee. Thus, the Letter of
Acknowledgment of Debt and the Power of Attorney
do not confer any legal and beneficial interest to the
donee as regards the property. This is unlike Lim Eng
Chuan Sdn Bhd v United Malayan Banking
Corporation & Anor 9 (CLJ 637, 2010) where here, a
borrower as the donor executed a charge and
debenture that incorporated an irrevocable power of
attorney in favour of the bank as the donee as security
for the loan given by the bank to the borrower. A
charge and debenture being a registered interest under
the National Land Code confers beneficial interest on
the bank which gives the bank the right to sell the land
and to carry out the sale, the bank exercised its power
given under the power of attorney to sell the land. The
bank derives the right to sell the land pursuant to the
creation of the charge and debenture over the land
which was registered under the National Land Code.
Here, it appears that the irrevocable power of attorney
will be upheld when the donee in fact has interest in
the land and the interest must be valid and recognized
by law.
In Hanizah binti Sulaiman lwn Abdul Kadir bin
Sulaiman dan lain-lain (MLJU 467, 2018) the
deceased during her lifetime as donor had granted an
irrevocable power of attorney to the plaintiff as donee
where two of the clauses therein stated that the donor
had given ¼ of land and house to the donee. The
Court stated that the transfer, in order to be valid,
must be subject to the dealings under Section 206 of
the National Land Code. But, this was not done,
unlike the transfer of property to the third and fourth
defendants which was dealt with straight away. There
was no evidence that the deceased had signed Form
14A to transfer the ¼ of land and house to the donee.
Thus, the power of attorney was not irrevocable. In
analysing the judgement of the Court, it is obvious
that the donee did not have any legal or beneficial
interest over the property as there was no dealing
between the parties subsequent to the irrevocable
power of attorney. This means that, if there exists
legal interest for the donee pursuant to the National
Land Code, the irrevocable power of attorney will be
held to be valid, example can be seen in Lian Lee
A Review on Irrevocable Power of Attorney: Malaysia and United Kingdom Compared
335

Construction Sdn Bhd v Joyous Seasons Sdn Bhd &
Anor 8 (MLJ 387, 2008), where an irrevocable power
of attorney was given by the first defendant as the
donor to the plaintiff as a security for the payment of
the contract price for the performance of renovation
works. The power of attorney conferred rights on the
plaintiff as the donee to sell, transfer, charge or
otherwise deal with the land. The Court held that the
power of attorney was not a limited power to deal
with the land in a limited manner as submitted by the
defendants. Once the attorney is given an irrevocable
power of attorney for valuable consideration to enable
the attorney as the donee to sell, assign or charge to
any person any land and for that purpose to sign and
execute all assignment transfers and other necessary
instruments, the said power of attorney gives the
attorney a caveatable interest on the land. Under
Section 6(1)(c), the first defendant as the donor was
not entitled to deal with the land without the consent
of the plaintiff.
The above illuminates the point that the
irrevocability of the power of attorney protects the
donee when the donee has interest over the subject
matter, and the interest must be a valid interest under
the law. Apparently one of the interests is also as a
purchaser. It means that the donee and the purchaser
can be the same person, which is obviously not
apparent from the wordings of Sections 6 and 7. This
is because the Sections seem to suggest that the donee
and the purchaser must be different people (the Law
Commission). The Court in Lim Eng Chuan Sdn Bhd
v United Malayan Banking Corporation & Anor 9
CLJ 637 (2010) had to refer to the purposive approach
enacted in Section 17A of the Interpretation Acts
1948 and 1967 (with effect from 25 July 1997 vide
Act A996) and stated that the purchaser and the donee
are in fact the same entity in that case, which is the
bank. The bank as the first respondent had given
valuable consideration in the form of the loan which
the borrower has obtained from the bank and has no
doubt utilised, enjoyed and benefited from it. The
bank is indeed the purchaser of the power of attorney
in which the borrower is the donor and the bank, as
purchaser, subsequently becomes the donee.
Purchaser. In essence, Section 6(1)(c) and Section
7(1) of the Powers of Attorney Act 1949 provides that
if a power of attorney, given for valuable
consideration, is expressed to be irrevocable (Section
6 situation), or irrevocable for a fixed period (Section
7 situation), then in favour of a purchaser, neither the
donee of the power, nor the purchaser shall be
prejudicially affected by notice of anything done by
the donor of the power without the concurrence of the
donee. The High Court in Tai Swee Kian v Tay Boo
Thiah @ Tai Boo Ting & Ors (MLJU 1013, 2011)
stated that the section appears to be aimed at
according protection to a purchaser who has
purchased or obtained property pursuant to an
irrevocable power of attorney given for valuable
consideration. The word ' purchaser' is wide enough
to accommodate the party who has procured or
obtained the benefit for valuable consideration under
the instrument in issue. In such circumstances,
namely where a third party purchaser has acquired
property from a donee pursuant to an irrevocable
power of attorney given for valuable consideration,
then neither that third party purchaser nor the donee
will be prejudicially affected by anything done by the
donor without the concurrence of the donee. When a
power of attorney has been exercised by the donee
and a third party has acquired any subject property,
such a transaction will not be vitiated by any act of
the donor purporting to sell the property under the
power of attorney without the consent of the donee.
This means that the interest of the donee that relates
to the interest of the purchaser from him will be
safeguarded.
In Lim Eng Chuan Sdn Bhd v United Malayan
Banking Corporation & Anor 9 (CLJ 637, 2010) the
appellant, as a registered proprietor of seven parcels
of land executed a charge under the National Land
Code over the land in favour of the first respondent to
secure an overdraft facility of RM1.5million. The
overdraft facility was also secured by a debenture,
which contained an irrevocable power of attorney in
favour of the first respondent, for valuable
consideration. When the appellant defaulted in its
repayment, the first respondent bank gave notice to
the appellant that it would sell the land under the
debenture. The first respondent as attorney under the
power of attorney entered into a sale and purchase
agreement ('the SPA') with the second respondent for
the sale of the land at RM1.9m. The benefit of Section
6 is here given to the second respondent as the
purchaser under the Sale and Purchase Agreement
executed pursuant to the irrevocable power of
attorney under the debenture. The Court stated that
Section 6 (and Section 7) of the Powers of Attorney
Act 1949 are clearly meant to protect those who
purchase property from a donee of a power of
attorney. A purchaser, having satisfied himself/itself
that the seller has the power under an irrevocable
power of attorney given for valuable consideration,
should not be constantly worrying that the sale could
become frustrated because the power of attorney is
revoked or renounced by the donor, or the donor dies,
marries, becomes unsound of mind or mentally
iN-LAC 2018 - International Law Conference 2018
336

disordered or bankrupt. In that context, it is true that
the benefit of Section 6 (and Section 7) is given to
purchasers. In other words, the sale of the land by the
first respondent (the donee) would continue to be
valid in the second respondent's favour
notwithstanding anything done by the appellant (the
donor) without the concurrence of the first
respondent.
It is to be noted that the Powers of Attorney Act
does not define ‘purchaser’. The phrase was however
defined in Section 205(1) of the UK Law of Property
Act 1925 as follows:
(xxi) ‘Purchaser’ means a purchaser in good faith
for valuable consideration and includes a lessee,
mortgagee or other person who for valuable
consideration acquires an interest in property ...; and
valuable consideration includes marriage but does
not include a nominal consideration in money.
In relation to the definition, the Law Commission
submitted that the mere fact that a person had in good
faith given valuable consideration did not make him
a purchaser so defined and under Sections 126 and
127 of the UK Law of Property Act 1925. He must
also have acquired “an interest in property”.
However, someone who had acquired for value and in
good faith any property, real or personal, from or
under the donee of the power would receive the
protection of Sections 126 and 127.
It appears that the definition of ‘purchaser’ in
Section 205(1) of the UK Law of Property Act 1925
is in line with the phrase ‘purchaser’ as deliberated by
the Malaysia Courts in the course of delivering
judgements.
3.4 Irrevocable Powers of Attorney at
Common Law
A power of attorney coupled with an interest is
irrevocable at common law while that interest subsists
(Trevor M Aldridge, 2007). In Oldham v Oldham
(1867) LR Eq 404 at 407 Lord Romilly MR referred
to “the ordinary case of a power of attorney given for
value, which, as everybody is aware, is not
revocable”. An irrevocable authority is not
determined by the death, mental capacity or
insolvency of the principal, nor, where the principal
is a body corporate, by its winding up or dissolution
(Bowstead & Reynolds on Agency, 2006). This rule
is justified on the general basis that what is in issue is
a property right, which once granted, is unaffected by
loss of capacity of the grantor (Bowstead & Reynolds
on Agency, 2006).
3.5 Irrevocable Power of Attorney:
Features of Sections 6 and 7 of the
Powers of Attorney Act 1949,
Sections 126 and 127 of the UK
Law of Property Act 1925 and
Section 4 of the UK Powers Of
Attorney Act 1971
The table below lays down the comparative table of
the essence of the provisions of the irrevocability of
power of attorney in Sections 6 and 7 of the Powers
of Attorney Act 1949, Sections 126 and 127 of the
UK Law of Property Act 1925 and Section 4 of the
UK Powers Of Attorney Act 1971.
Table 1. comparative table of the essence of the provisions
of the irrevocability of power of attorney
Powers of
Attorney Act
1949
UK Law of
Property Act
1925 (relevant
provisions
were repealed
on 1 October
1971)
UK Powers
Of Attorney
Act 1971 (with
effect 1
October 1971)
As a general rule,
a donor may
revoke a power
of attorney
expressly stated
to be
“irrevocable”
unless that power
of attorney is
intended to
secure an interest
of the attorney, as
Section 6
provides that if a
power of attorney
which is given
for valuable
consideration
and expressly
stated in the
power to be
irrevocable, then,
in favour of a
purchaser, the
power:
(1) cannot be
revoked
unilaterally by
the donor without
As a general
rule, a donor
may revoke a
power of
attorney
expressly stated
to be
“irrevocable”
unless that
power of
attorney is
intended to
secure an
interest of the
attorney, as
Section 126
provides that if
a power of
attorney which
is given for
valuable
consideration
and expressly
stated in the
power to be
irrevocable,
then, in favour
of a purchaser,
the power:
There is no
requirement
that the power
of attorney be
given for
valuable
consideration.
Instead, the
donee must
have a
proprietary
interest, or
some obligation
must be owed to
him. As long as
the donee has
the proprietary
interest or the
obligation to
him remains
undischarged,
the power
cannot be
revoked by the
donor
unilaterally.
The death,
incapacity or
bankruptcy of
the donor also
A Review on Irrevocable Power of Attorney: Malaysia and United Kingdom Compared
337

the consent
of the donee; and
(2) will not be
revoked by the
death, marriage,
mental disorder,
unsoundness of
mind, or
bankruptcy of the
donor.
(Section 6
Powers of
attorney given
for valuable
consideration)
(1) cannot be
revoked
unilaterally by
the donor
without the
consent of the
donee; and
(2) will not be
revoked by the
death, disability
or bankruptcy
of the donor of
the power.
(Section 126
Effect of
irrevocable
power of
attorney for
value)
does not affect
the power, as
the power is
exercisable for
the attorney’s
own protection.
Similarly, a
power granted
by a corporation
is not revoked
by the donor
being wound up
or dissolved.
(Section 4(1)
Powers of
attorney given
as security)

A power of
attorney given
to secure a
proprietary
interest may be
given to the
person entitled
to that interest
and to the
persons
deriving
title under him
and those
persons will be
duly constituted
donees or
attorneys. In
other words, s
4(2) provides
that such a
power may be
given to a donee
and his
successor in
title. The effect
of this, is that
the transfer of
the secured
interest will not
cause the power
to end or
become
revocable; so
long as the
interest remains
in the
successors, the
power of
attorney needed
to protect it will
remain
irrevocable.
(Section 4(2)
Powers of
attorney given
as security)
 
A Power of
Attorney is
irrevocable for a
fixed period of
time. Therefore,
during such
period, the
power:
(1) cannot be
revoked
unilaterally by
the donor without
the consent of the
donee; and
(2) will not be
revoked by the by
the death,
marriage, mental
disorder,
unsoundness of
mind, or
bankruptcy of the
donor.
(Section 7
Powers of
attorney
expressed to be
irrevocable for a
fixed time)
A Power of
Attorney is
irrevocable for
a fixed period,
not exceeding
one year from
the date of the
instrument.
Therefore,
during such
period, the
power:
(1) cannot be
revoked
unilaterally by
the donor
without the
consent of the
donee; and
(2) will not be
revoked by the
the death,
disability or
bankruptcy of
the donor of the
power.
(Section 127.
Effect of power
of attorney
irrevocable for
a fixed time)
As highlighted above, Sections 6 and 7 of the
Powers of Attorney Act 1949 resembles the repealed
Sections 126 and 127 of the UK Law of Property Act
1925. The irrevocability of powers of attorney is now
stated in Section 4 of the UK Powers Of Attorney Act
1971, which was enacted as a result of the
recommendations of the Law Commission, which
recommended the repeal of Sections 126 and 127 of
the UK Law of Property Act 1925 and the enactment
of Sections 4 and 5(3) of the UK Powers Of Attorney
Act 1971 to replace Sections 126 and 127 with
modifications (Charles Lim Aeng Cheng et al., 2009).
Section 4 of the UK 1971 Act was enacted to address
the difficulties arising from Sections 126 and 127 of
the UK Law of Property Act 1925. Section 4 neither
iN-LAC 2018 - International Law Conference 2018
338

requires that the power be given for valuable
consideration. Nor does the death, incapacity or
bankruptcy of the donor affect it. Instead, the donee
must have a proprietary interest, or some obligation
must be owed to him. So long as the donee has the
proprietary interest or the obligation to him remains
undischarged, the power cannot be revoked by the
donor unilaterally. Similarly, a power granted by a
corporation is not revoked by the donor being wound
up or dissolved. The Law Commission identified two
main problems with Sections 126 and 127, firstly,
there was no reason why a distinction should be
drawn between powers given for valuable
consideration and other powers, and secondly, it was
not clear what exactly was achieved by these sections
in providing “irrevocability” “in favour of a
purchaser”. In relation to ‘valuable consideration’,
the Law Commission studied the position at common
law where the distinction is between authority
“coupled with an interest” and other types of
authority. The former cannot effectively be revoked
because in reality they are not cases of agency at all
but of proprietary interest given by way of security.
The so-called “agent” is not acting as a fiduciary in
the interests of his principal but in his own interests.
Section 4(2) provides that a power of attorney given
to secure a proprietary interest may be given to the
person entitled to that interest and to the persons
deriving title under him and those persons shall be
duly constituted donees or attorneys.
An example of the application of Section 4 of the
UK Powers of Attorney Act 1971 can be seen in the
UK Supreme Court of Bailey v Angove ( UKSC 47,
2016), where, in dealing with an issue of whether a
wine distribution agent could continue to collect the
price of wines it had sold before the insolvency
proceedings and deduct from it their commission after
the wine maker had terminated the agency and
distribution agreement between them because their
authority to do so was irrevocable, the Court referred
to Section 4(1) of the UK Powers of Attorney Act
1971 and held that for the Section to apply, two
conditions must be satisfied, firstly, there needs to be
an agreement that the agent's authority is irrevocable;
and secondly the authority must be given to secure an
interest of the agent, being either a proprietary interest
(for example a power of attorney given to enable the
holder of an equitable interest to perfect it) or a
liability (generally in debt) owed to him personally.
In these cases, the agent's authority is irrevocable
while the interest subsists.
Both conditions are now reflected in s 4(1) of the
Powers of Attorney Act 1971, as regards authority
conferred by a Power of Attorney. Significantly, an
agreement that an agent's authority is irrevocable can
be inferred and need not be expressly stated. The
Supreme Court rejected the agent's case, as the
conditions were not met.
4 CONCLUSIONS
It appears that Sections 6 and 7 of the Powers of
Attorney Act 1949 derived from the repealed Sections
126 and 127 of the UK Law of Property Act 1925.
The UK Powers of Attorney Act 1971 has since
adopted what is now Section 4 in place of the repealed
Sections for the purpose of clearly indicating that as
long as the donee has ownership interest or the
obligation to him remains undischarged, the donor
cannot revoke the power of attorney unilaterally. It
also avoids the confusion as regards the term
‘purchaser’, and ‘valuable consideration’, which have
been deleted altogether. The word ‘secure’ is
incorporated to indicate that the power of attorney is
in fact a security arrangement to protect the interest
of the donee. From the review of the Malaysian
judicial decisions as discussed above, it is evident that
the Courts in delivering judgements on the
irrevocability of powers of attorney have gone on
great lengths in applying, interpreting and
distinguishing the applicability of irrevocability of
power of attorney under Sections 6 and 7 of the
Powers of Attorney Act 1949. Many parties have in
fact executed irrevocable powers of attorney as a
means to safeguard their respective interests but not
all succeeded in Courts as they failed to understand
the requirements of these Sections, perhaps due to the
ambiguity of the wordings of the Sections. The
power of attorney will not become irrevocable merely
because the document itself describes the agency to
be an irrevocable one. It must satisfy the conditions
for the valid creation of an irrevocable power. This
may perhaps be an indicator that the irrevocability of
power of attorney as laid down in Sections 6 and 7 is
very practical to protect the interests of the donee as
well as the third party in transactions, but the
wordings of the Section should perhaps be relooked
to make it more transparent, akin to Section 4 of the
UK Powers of Attorney Act 1971, where the power
of attorney continues as long as the other party has
proprietary interest, or the donor must pay or honour
an obligation to that party. In fact, it might also be
relevantto retain express reference to a purchaser
since the protection should extend to a bona fide
purchaser from a person who has dealt with the
A Review on Irrevocable Power of Attorney: Malaysia and United Kingdom Compared
339

attorney whether or not that person was protected
because he too acted in good faith.
REFERENCES
Chang, Wendy; Low, June Celine; Lim Aeng Cheng,
Charles; T P B Menon; Tan Peng Chin, 2009. Report
Of The Law Reform Committee On Powers Of Attorney,
Singapore Academy of Law, Law Reform
Committee.Singapore.
Josephson, Mark. Authority: Why We Should All Have An
Issue With It,Accessed July 20. 2018.
http://www.mtlandtitle.com/documents/Josephson
AUTHORITYISSUESHandout.pdf.
Halsbury's Laws of England. 4th edition at para 87.
In the Matter of Ziad Sakr FAKHRI, Plaintiff, v.
MARRIOTT INTERNATIONAL HOTELS, INC.,
Defendant., 2016 WL 3882795 (D.Md.)
Khumalo, Hazel. Irrevocable Authority, Accessed July 28,
2018.https://www.bowmanslaw.com/insights/finance/i
rrevocable-authority/.
Law Commission for England and Wales, Report on
Powers of Attorney, Law Com No 30, September 1970
and Working Paper on Powers of Attorney, Working
Paper No 11, June 1967.
Law Commission of UK. The Execution Of Deeds And
Documents By Or On Behalf Of Bodies
Corporate,Accessed February 20, 2018.
www.lawcom.gov.uk/.../cp143_Execution_of_Deeds_
and_Documents_Consultation.pdf
Reynolds, F M B; Graziadei, Michele; Bowstead, William,
2006. Bowstead & Reynolds on Agency, Sweet &
Maxwell. London, 18th Edition.
M Aldridge, Trevor QC (Hon), 2007. Powers of
Attorney,Sweet & Maxwell. United Kingdom. 10
th
edition.
M. Jasmine Sweatman, 2002. Guide to Powers of Attorney,
Canada Law Book Inc Aurora. Ontario.
Nasser Hamid and Pushpa Menon, 2010.Powers of
Attorney, Gavel Publications. Petaling Jaya, Selangor,
1
st
edition.
Nurazlina Abdul Raof, Nuraisyah Chua Abdullah, Nadia
Omar and Rozita Othman, 2015. Biting The Hands That
Feed-Financial Abuse Of Elderly Women.
InProceedings Of 1st International Conference On
Women And Children Legal And Social Issues, ISBN
NO: 978-967-0171-65-4 (2016): 355-365.
Nurazlina Abdul Raof dan Nuraisyah Chua Abdullah, 2017.
Financial Exploitation of Power of Attorney in Siti
Zaharah (Eds.), Protecting The Elderly Against Abuse
and Neglect-Legal and Social Strategies, University
Malaya Press. Kuala Lumpur, 1
st
edition.
Parmeswaran S., 1998. Laws Relating to Powers of
Attorney,Universal Publishing Co. Pvt. Ltd. Delhi,
2ndedition.
Professor Watts, Peter, 2014. Bowstead & Reynolds on
Agency, Sweet & Maxwell.United Kingdom, 20
th
edition.
Sidle, Paul, 2017. A case of wine leaves insolvent agent with
a hangover: irrevocable authority and remedial
constructive trusts, FeaturesA Case of Wine Leaves
Insolvent Agent with a Hangover, (2017) 1 CRI 6.
iN-LAC 2018 - International Law Conference 2018
340