Can someone other than a director of a company sign a power of attorney?

Introduction

Powers of attorney are one of the most common documents that need signing by a company engaging in activities in other countries. A company should always execute powers of attorney should always execute them as deeds. The reasons why powers of attorney = deeds are described in a note available on my website.

Although the common situation is that the directors sign powers of attorney for their company, sometimes there is a requirement that someone other than a director should be able to sign.

The default position under the Companies Act 2006

The Companies Act 2006 is pretty clear that, by default, only:

• a director (in the presence of a witness, who attests the signature of the director); or
• two directors; or
• a director and a company secretary

can sign a power of attorney (See Companies Act 2006, s 44(2), s 42(3). There are other formalities that need complying with, that the power of attorney states it is executed by the company (Companies Act 2006, s 44(4)), and that it is delivered (assumed on the power of attorney being executed, Companies Act, s 46.

Can someone other than a director sign a power of attorney for a company?

Yes. The Companies Act 2006 does provide that someone other than a director can do so. Companies Act 2006, s 47 states:

Execution of deeds or other documents by attorney

(1) Under the law of England and Wales or Northern Ireland a company may, by instrument executed as a deed, empower a person, either generally or in respect of specified matters, as its attorney to execute deeds or other documents on its behalf.

(2) A deed or other document so executed, whether in the United Kingdom or elsewhere, has effect as if executed by the company.

In effect, the company has to grant a power of attorney (signed as a deed) to the other person.

An example

The issue

1. A company wishes to authorise patent agents to apply for patents in several countries.
2. All of the patent agents require the company to grant standard form powers of attorney to them.
3. The directors do not wish to spend their time signing such ‘routine’ documents. The directors wish a senior employee (‘attorney’) to do so.

The solution

The following is the suggested method:

1. The board of directors has a meeting (or passes a written resolution) to appoint the senior employee as its attorney. This appointment might be a general appointment (ie the employee can sign any type of document, or limited just to sign formal documents in relation to the appointment of patent agents or the prosecution of the applications);
2. To make the appointment the company has to sign a power of attorney appointing the senior employee as its attorney (either by one director signing in the presence of a witness, etc);
3. The senior employee (‘attorney’) then signs the powers of attorney to appoint the patent agents in the various countries.

There will be two powers of attorney:

• one issued by the company to the senior employee, and then
• the power of attorney signed by the senior employee.

Some issues

If the attorney signs the power of attorney for the company the following are common issues that need attention:

1. the power of attorney should state that the attorney is signing as the attorney of the company, not that the company itself is signing the power of attorney; and/or
2. if the power of attorney is not in English then the wording indicating that the attorney is signing as an attorney may need translating; and/or
3. it may not be acceptable in the destination country for an attorney to sign on behalf of a company or it may be necessary to set out how the attorney has obtained the authority to sign on behalf of the company. The latter may involve several additional paragraphs of text to explain the authority; and/or
4. for many countries the only acceptable person to sign a formal document is a director or other officer of a company. Anyone else will simply not do (or it is too time consuming explaining why).

A typical set of wording at the end of a power of attorney where an attorney signs on behalf of a company is:

Executed as a deed by Jo Smith as attorney for The Patent Company…

There are other formulations of words which are possible.

Concluding points

The above is no more than an introduction. But in my experience, it is very rare for anyone other than a director to sign a power of attorney. Although it is does take up the time of a director, the number of occasions it is necessary to do so is not that frequent. Frequently the powers of attorney are not time critical and can be signed when a director is available.

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