A power of attorney is a document by which the donor gives the attorney the power to act on behalf of and in the name of the donor. This potentially broad authority led to a requirement for particular execution formalities under English and Cayman law. This note provides brief answers to the most common questions that arise in relation to Cayman powers of attorney.
1. What are the execution requirements for a Cayman law governed document containing a PoA?
- Execution by individual: document must be expressed to be executed as a deed and signed by the donor. Signature must be witnessed.
- Execution by Cayman company: document must be executed either (i) by affixing to it the company's seal (in accordance with its articles of association) or (ii) by having it executed by the company by any person acting under the company's express or implied authority and ensuring that it is expressed to be executed as a deed. Signature need not be witnessed (unless required under the articles of association or other signing authority, which would be unusual).
- Execution by non-Cayman company: document must be executed (i) by either of the ways applicable for a Cayman company (see para (b) above), or (ii) by executing it in conformity with the requirements imposed by the laws of the jurisdiction in which the overseas company was formed or incorporated and its constitutional documents.
2. What are the Cayman execution requirements for a non-Cayman law governed document containing a PoA, where the donor is a Cayman company?
Same as para 1(b) above, irrespective of the jurisdiction where the attorney is to operate. The fact that a PoA granted by a Cayman company is governed by the law of another jurisdiction cannot override the requirements of Cayman law, since it is Cayman law generally and the Companies Law (Revised) and Powers of Attorney Law (Revised) specifically, that determine the company's formation, capacity and execution requirements with respect to deeds and powers of attorney.
It may be that the governing law jurisdiction or the jurisdiction in which the attorney is to operate will have its own execution requirements, in which case the Cayman company should also comply with such requirements.
3. What are the execution requirements where a limited partnership agreement of a Cayman exempted limited partnership contains a PoA?
The Exempted Limited Partnership Law, 2014 states that any LPA including a PoA is deemed to be executed as a deed. The requirements set out under 1 above do not therefore apply for the PoA to be valid as a matter of Cayman law (though it remains customary for LPAs to contain the "executed as a deed" wording).
This deeming provision does not apply to a subscription agreement containing a PoA, which must therefore still be executed as a deed.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.