"The owner is overseas. Can his brother sign the SPA using PA?"

A property owner moves overseas and decides to sell his house in Malaysia.

He cannot return for the signing of the Sale and Purchase Agreement. He therefore signs a short document appointing his brother to “handle all matters concerning my property.”

The brother finds a buyer and agrees on the price. When the parties are ready to sign the SPA, the buyer’s solicitor asks for the registered Power of Attorney.

The owner responds:

“My brother already has my written authority. Why does anything else need to be registered?”

A Power of Attorney is more than a letter confirming that someone may assist with a transaction.

Whether the attorney can validly sign a particular document depends on the wording, execution, authentication, registration and continuing effect of the Power of Attorney.

1. A Power of Attorney appoints an attorney to act for the donor

The person giving the authority is commonly called the donor. The appointed representative is the donee or attorney.

The document may grant general powers or be limited to a specific transaction.

For a property sale, the powers may include authority to:-

• negotiate and accept a purchase price;

• appoint solicitors;

• sign the SPA;

• sign the instrument of transfer or assignment;

• submit consent applications;

• deal with the land registry, developer or management body;

• obtain a redemption statement;

• receive notices or documents; and

• handle specified payments.

The powers should match the intended transaction.

A general phrase such as “manage my property” may not clearly authorise the attorney to sell it, execute a transfer or receive the sale proceeds.

2. The attorney cannot safely act beyond the authority given

A third party dealing with the attorney will normally want to confirm that each proposed act falls within the Power of Attorney.

If the document authorises the attorney to rent out the property, that does not necessarily include authority to sell it.

If it authorises a sale at not less than RM1 million, the attorney may not be able to accept RM900,000.

If the attorney is authorised to sign the SPA but not the transfer instrument, further documentation may be required before completion.

The property and the authorised acts should therefore be identified with sufficient precision.

3. A Power of Attorney does not transfer ownership to the attorney

The registered proprietor remains the owner.

The attorney signs or performs authorised acts as the donor’s representative. The attorney does not become entitled to treat the property or the sale proceeds as his own.

This distinction is important when the attorney is also a family member, proposed buyer or recipient of part of the proceeds.

Any authority involving payment to the attorney, a sale to the attorney or another potential conflict should be drafted and examined carefully. A general authority should not be assumed to permit self-dealing.

4. Execution and authentication must comply with the statutory requirements

The Malaysian Judiciary explains that a registrable Power of Attorney must be in Bahasa Malaysia or English. If another language is used, a certified translation must accompany it.

A Power of Attorney executed in Peninsular Malaysia must be authenticated by a person authorised under the Power of Attorney Act 1949.

Different authentication arrangements apply where the document is executed outside Peninsular Malaysia. Depending on the place of execution, this may involve a notary public, judge, magistrate, Malaysian consular officer or another authorised person.

Using an ordinary witness who is not authorised may cause the document to be rejected for registration or use.

The authentication form also differs depending on whether the donor is an individual or a company. 

5. Stamping and registration should be completed before the document is relied upon

The Judiciary’s registration guidance states that the Power of Attorney should first be stamped before it is submitted for registration.

Two sets are generally required: the original and a duplicate for filing.

Registration may be made at the Power of Attorney Registry of the High Court of Malaya in Kuala Lumpur or at a High Court registry in Peninsular Malaysia.

In a conveyancing transaction, the buyer’s solicitor, bank, developer or land registry may require:-

• the registered Power of Attorney;

• a certified copy;

• evidence of stamping;

• proof that it remains in force; and

• confirmation that the particular transaction is within its scope.

Registration is therefore not an issue to be left until the completion deadline.

6. An overseas owner should plan the signing process early

Executing a Power of Attorney overseas can take time.

The owner may need to:-

• finalise the document before attending the authorised witness;

• comply with local notarisation requirements;

• arrange consular authentication where applicable;

• courier the original document to Malaysia;

• have it stamped;

• register it at the High Court; and

• provide certified copies for the transaction.

The owner should not sign a generic form overseas before the property particulars and required transaction powers have been confirmed.

If the document is defective, arranging a replacement after the SPA deadline may delay the sale.

7. A company must also establish its corporate authority

Where the donor is a company, the Power of Attorney must be executed in accordance with the applicable corporate requirements.

The company may need appropriate board or shareholder approvals depending on its constitution, the transaction and the Companies Act 2016.

The person signing for the company must have authority to do so.

A Power of Attorney cannot cure the absence of a required corporate approval or give the company powers that it does not otherwise possess.

8. Can the attorney receive the purchase price?

That depends on the document and the agreed completion mechanics.

For protection of all parties, sale proceeds are commonly handled through solicitors and used first for matters such as redemption of an existing loan, RPGT retention, apportioned outgoings and other completion obligations.

If the attorney is intended to receive money personally, that authority should be stated clearly and assessed carefully.

The buyer should not simply pay the price into an account nominated informally by the attorney without confirming the SPA, the Power of Attorney and the solicitors’ completion instructions.

9. A Power of Attorney cannot bypass restrictions on the property

Even a properly registered Power of Attorney does not remove:-

• a restriction in interest;

• the need for State consent;

• a registered charge;

• a private caveat;

• requirements imposed by a developer;

• foreign ownership restrictions; or

• other legal conditions affecting the transfer.

The attorney may submit applications or sign documents if authorised, but the underlying requirements still need to be satisfied.

10. Does the Power of Attorney continue indefinitely?

Not necessarily.

The Judiciary’s guidance explains that a registered Power of Attorney may cease to operate upon events such as written revocation, renunciation, death, mental incapacity or bankruptcy, subject to the provisions applicable to an irrevocable Power of Attorney.

Simply writing “irrevocable” in the title does not answer every question. Whether the authority is legally irrevocable, for how long and for whose benefit depends on the statute, wording and circumstances.

Before completion, the parties may require confirmation that the donor is alive, the Power of Attorney has not been revoked and no terminating event has occurred.

If the donor dies during the transaction, the effect on the authority and the SPA must be examined immediately.

11. Can the donor still act personally?

Granting a Power of Attorney does not necessarily mean the donor loses all ability to act.

The document should clarify whether the authority is exclusive and how it interacts with acts subsequently performed by the donor.

Conflicting instructions from the donor and attorney can expose the buyer, bank and solicitors to risk. Any revocation or variation should therefore be communicated formally and registered where required.

12. What should be checked before an attorney signs an SPA?

The parties should confirm:-

• the donor’s identity and capacity;

• the attorney’s identity;

• the exact property;

• the powers granted;

• any price or transaction limits;

• proper execution and authentication;

• stamping and registration;

• corporate approvals, where relevant;

• whether the authority remains in force;

• restrictions affecting the property;

• the treatment of sale proceeds; and

• whether the attorney has any conflict of interest.

A Power of Attorney can make an overseas or otherwise unavailable owner’s transaction possible.

However, it should be prepared as part of the conveyancing structure - not as a last-minute permission letter after the buyer is already waiting to complete.