Updated | IT lawyers, chief notary clash over law to simplify revocation of power of attorney

The government’s Chief Notary and an association representing IT lawyers are at loggerheads over a new law intended to simply the process by which a power of attorney can be revoked.

The legal notice, launched by justice minister Owen Bonnici on Saturday, allows holders and subjects of a power of attorney to cancel it by filling in an online form against a €50 fee. The forms will then be processed by the Chief Notary within 24 hours and afterwards published on an online registry.

Bonnici said that this process will drastically cut down on costs associated with cancelling a power of attorney – which used to reach up to €2,000. It will also slash bureaucracy, removing the current need for people who want to terminate a power of attorney to individually notify every notary and commercial bank on the island.

However in an open letter to the justice minister, the Malta IT Law Association (MITLA) warned that the legal notice could be in breach of Malta’s electronic commerce laws. Indeed, they noted that the electronic revocation of power of attorneys is excluded from the Electronic Commerce Act and that the legal notice did not update it to include any direct legal equivalence for such electronic revocation.

“This might create an anomaly where third parties could attack the legal validity of revocations of power of attorneys filed electronically, irrespective of the provisions introduced by the regulations,” MITLA said in a statement. “It appears that the procedure being introduced pursuant to the regulation is that of facilitating the electronic submission of the revocation of a power of attorney without entering into any matters relating to security, identification and the underlying technology used.”

The Chief Notary, in a brief response, said that the legal notice launched on Saturday merely introduced the online form through which people can revoke power of attorneys as well as the online registry that will record all such terminations.   

“The public have responded positively to these measures,” Paul Callus said.

However, MITLA retorted that the Chief Notary’s response directly contradicts the wording of the legal notice.

Indeed, they highlighted a phrase within the legal notice: “The notification shall be made by submitting one of the application forms found in the Schedule:

Provided that all application forms submitted, including application forms submitted electronically, shall be processed by the Chief Notary to Government on working days until [3pm] and the electronic register shall be updated electronically every working day.”
In their letter to Bonnic, MITLA had also warned that the legal notice raises questions as to the applicability of other important provisions included in the Electronic Commerce Act, such as the time of dispatch and receipt rules, “which could have serious repercussions on the date and time in which such power of attorney should be considered terminated at law, if at all.”

“MITLA is of the opinion that the exclusion of the recognition of the concept of legal electronic equivalence to matters included in Schedule 5 of the Electronic Commerce Act is there specifically due to the extreme importance that such areas attract in society and that the state of the art technology needs to work harder to establish that such activities can be carried out electronically and respecting the principles of security, integrity, authenticity and non-repudiation of electronic communications.

“A serious discussion has to be initiated as to how, if and when such Schedule 5 of the Electronic Commerce Act needs to be revised to reflect available technological trends and how these areas of law can make better use of such technologies.”