This article examines the situation where a person is authorized to act on behalf of another person. Although this situation is largely governed by the law of agency (i.e. contract law) in most jurisdictions, this article focuses on a special type of agency in common law jurisdictions, namely, a power of attorney. It first explains how a power of attorney operates – and how it is treated differently from the law of agency in certain respects – and outlines the different types of power that can be granted to an attorney. It then considers whether lawyers can and should act as attorneys under a power of attorney. Finally, it considers whether similar arrangements are possible under Chinese law.

Common law jurisdictions

In common law jurisdictions, powers of attorney are recognized under both general law (i.e. case law) and also statute. Under case law, a power of attorney is defined as an instrument in the form of a deed by which one person (the principal) gives authorization to another person (the attorney) to act on behalf of the principal. A power of attorney may be granted either by an individual or by a company. In addition, either an individual or a company may act as an attorney.

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Andrew_Godwin_2015A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lwxicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at law.asia