Using power of attorney after the death of the grantor
We have reviewed request no. 2732 for the year 2005, which includes the following:
Is it permissible for a grandfather to use a power of attorney from his predeceased son to sell his son’s share in something to his other son? To what extent is this considered a legal contract?
A power of attorney is an instrument authorizing a person to act as someone else's agent in things which are possible to undertake (such as business agreements) during their lifetime. It is legitimate, since God the Almighty says, "Appoint one arbiter from his family and one from hers" (Quran 4:35).
It is also permissible based on the fact that the Prophet (peace and blessings be upon him) delegated messengers to collect zakat. In addition to this, he appointed ‘Amr Ibn ‘Umayyah al-Damri to act as his agent in his marriage to Umm Habiba.
A prerequisite for a power of attorney is that it must be valid for the grantor to engage in such transactions. A power of attorney becomes invalid when either the agent or the grantor ceases to be qualified to engage in transactions through death or insanity. Thus, it is not permissible for the agent to engage in what one was commissioned to do after the death of the grantor.
Based on the above, it is not permissible for the grandfather to use the power of attorney to sell the share of his deceased son—the grantor—to his living brother. If this does occur, the sale is legally void.
And God the Mighty knows best.