Power of Attorney in simpler terms is giving an authorised agent some authority for performance of actions as a representor on behalf of the person who makes the power attorney or Principle. It is a legal instrument conferring rights to an agent to perform actions authorized; it could be for legal affairs, business purposes or private affairs. It should also to be looked upon that, the Power of Attorney and Will is very different concepts; Power of Attorney is valid when the creator is alive, and becomes non-operational when the person is dead; whereas, the Will comes into effect when the person is dead. Any person/ persons may, due to a reasonable ground may make a power of attorney some being, NRI, illness or continuous ailment, not being able to handle some transactions, seniority or old age issues, etc. The statute that governs the diversities of Power of attorney is "POWER OF ATTORNEY ACT, 1882" which applies to whole of India except, the state of Jammu and Kashmir.
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" ‘Section: 1A’ of "POWER OF ATTORNEY ACT, 1882", "A ‘Power Of Attorney’ includes any instruments empowering a specified person to act for and in the name of the person executing it".
Despite of this very specific and concise Act on Power of Attorney the main roots of the concept of Principal and Agent or the Law of Agency derive its context in the Indian Contract Act, 1872. A power of Attorney is an authority or designation of powers for a limited time and a limited reason given by a written formal legal instrument or expression, whereby one person is identified as the donor or principal who is in a capacity to authorise any another person termed the donee, attorney or agent to act on his behalf. A Power of Attorney may have joint holders.
Principal/Grantor/Donor- The person who assigns the power to the other person to act on his behalf to be called as the grantor, principal, or donor.
Attorney/Agent/Donee- The person to whom the power is assigned is called the Attorney, agent, or donee.
1. General Power Of Attorney
The word "GENERAL" means that the authority, power, or assignment of powers made or given by the principal/grantor which is general. It must be in nature of bonafide and legitimate use of power regarding the subject matter of affairs likely to be of property, bank account management, any registrations, and tax affairs or even to move in court and not in any specific matter is called as General Power of Attorney or GPA. Trust is the foundation of General Power of Attorney hence making it risky to entrust.
It is the authority in which the principal/grantor authorizes the agent to perform a certain task on behalf of the grantor/principal.
2. Special Power Of Attorney
The another crucial type of power is created is the Special power which implies it is granted or created for only a specific limited task or work. In this form of Power of Attorney the Principal on his behalf makes the Agent(Lawyer/ Advocate) act in his behalf in cases, he himself is not able to remain present cases in which the Principal is ill or abroad or travelling etc… Such right may be for a single performance or for multifarious activities within those limited scope of performance. The special power concludes when such specific tasks are achieved
3. Durable and Non-durable Power of Attorney
As the trend suggests a Power of Attorney comes to an end with the death of the Principal/the creator/Author. This form of power of attorney which clearly mentions that the appointed agent (s) are considered to become unauthorised for the acts for which they were actually appointed is when the Principal himself becomes mentally insufficient. If the original legal documents regarding that Power of Attorney explicitly mention its absolute willingness to give it force to remain in power even after such mental efficiency and then in this case, it is known as Durable Power of Attorney. The basic idea behind it is that is meant to be conveyed is that, if the deed has clear terms to its effect that even after the condition of mental insufficiency or death of the Principal, the power needs to continue as stated in the Power of Attorney then such shall happen and take place. Absence of any such special mention after the death of the Principal would render such as a non-durable Power of Attorney.
Given down below are the essential contents of a Power of Attorney Deed:
The registration of Power of Attorney is per se not mandatory, In the property matters it is expected to be drafted and printed on a Stamp Paper, whereas the non-property matters could be printed even on the plain papers. The property matters needs to be taken before the sub-registrar Office, whereas the non-property matters could be only attested and notarised. .A foreign Power of Attorney must get a signature from the Collector of that area. A property immovable in nature having a value of more than Rs 100 shall be registered without fail. The registration of the Power of Attorney provides it an authenticity to stand in the court of law. The Power of Attorney shall be attested by two or more independent witnesses who are major and of sound mind.
Registration by NRI (Non-Resident Indians)
The NRIs can also make a Power of Attorney all that is required is a draft the Power of Attorney for NRIs, printed on a plain paper with a signature of NRI on it. They shall then visit the Indian Embassy or Consulate in that country and get the deed stamped and sealed from the embassy. As an option they can, notarize the deed by a Public Notary in that country mentioning the notary registration number on the seal on each page of the document. Such the deed of Power of Attorney must be a attested deed sent by the registered post to the Indian address in the name of any relative or friend.*
Power of Attorney can be revoked in the following cases
A Power Of Attorney remains in force unless it is expressly revoked or the parties die. A Power of Attorney maybe oral or in writing but a written Power of Attorney could be counted as a merit. It is the most essential feature of a Power of Attorney that the Grantor/Principal must be mentally fit and he shall prove it in a legal document. The Agent must be someone who is expected to act in a good faith and in the best interests of the Principal. An agent or the attorney holder may also pass on his powers and duties to another person only if the deed of Power of Attorney speaks about it.