Rakesh Apte
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“Vest your trust, but not in the wrong person.” A power of attorney giving the right to one person acting on behalf of another person may be a very handy tool. However, if it falls into the wrong hands, it can be miserable! A power of attorney (POA) is a legal document by virtue of which one person (known as the agent) can act on behalf of the other person (known as the principal). The agent enjoys some general or ordinary power, specific, special, or financial power about the property, finances, or medical care of the principal. This is mainly used in the absence of the principal or in the event of his illness or disability. Conventionally, it is given to a person of trust of the principal. It may become incapacitated for a number of reasons like the death of the principal, revocation by the principal or by the court, or when the agent can no longer perform the given responsibilities. Things Power of Attorney Allows us to do: POAs are mainly of two types- medical and financial. A medical power of attorney enables the agent to decide over the medical care that the principal receives in case he is incapacitated. A financial power of attorney enables the agent to make financial decisions including investments on behalf of the principal. Things that a medical POA can do are- Take decisions regarding medical care including surgery, hospital care, psychiatric treatment, home health care, etc. Take decisions regarding the doctors and care providers that the principal uses. Take decisions regarding long-term care, such as assisted living, memory care, and nursing homes in case the principal lives but not in a healthy condition. Takes decisions about the fooding habit and bathing habit of the principal. Things that a financial POA can do are- Get access to the financial account of the principal to pay for health care bills, housing needs, and other provisions. Taxes are filed on behalf of the principal. Take decisions regarding the investment of the principal. Pay and collect the principal’s debts and manage his property, both movable and immovable. POA gives considerable power in the hands of the agent to deal with the medical and financial aspects of the principal. However, there are a few things that a POA cannot do. They are- Agents cannot change a principal’s will. Cannot break the fiduciary relationship. If the principal has not named the agent as executor of his will or the principal does not have a will, the agent cannot make financial decisions after the death of the principal. An agent cannot transfer his power of POA to someone else. Requirements for a Power of Attorney The power of attorney may be instituted by any natural person having the capacity to contract. The requirements are- The power of attorney should contain the date of execution. The document must be signed by the principal and any other adult in the presence of the principal and according to his directions. POA is signed and acknowledged before a notary public and is signed by two witnesses. The witnesses cannot include attorney-in-fact in case of a durable POA. In the case of an online POA, Aadhar card and ID card is mandatory. Also, the document should be notarized.
To Obtain Power Of Attorney
- Drafting
- Submission
- Verification
Drafting the power of attorney with the assistance of a documentation lawyer hired from the lawtendo platform.
Submitting the power of attorney and all the required documents to the sub registrar who has jurisdiction over the area where principle resides
Attesting the drafted power of attorney and two witnesses before the registrar
Estimate Time Required
Once the submission is done, it takes about 8-10 weeks to register for POA. Also, the validity period of POA in India is 30 days. By law, it is not valid after the death of the principal or after it has been revoked. If the agent is acting in an improper way, the family members of the principal can file a suit against him on the ground that the agent is not acting in the best interest of the principal.
Documents Required for Power of Attorney
Identification proof of the parties (such as Aadhar card, voter ID card, PAN card, Driving license, etc).
Witnesses should also bring their identification proof.
Address proof of principal and agent(s)
Passport-sized photographs of the parties.
Electricity bill/index bill/tax receipt of the property (If POA concerns some property)
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FAQ
A power of attorney is a legal document by virtue of which a person (principal) delegates power to another person (agent) to perform certain functions in relation to matters of property, tax, health, judicial proceedings, etc. This power authorizes the other person to perform such functions when the principal is unable to look after those matters due to reasons such as being out of town, growing old, being sick, incapacitated, etc.
The one who delegates the power of attorney is called the principal or grantor while the person to whom the power gets delegated is termed as attorney or agent.
General power of attorney, special power of attorney, durable power of attorney, and non-durable power of attorney are the four types of power of attorney.
General power of attorney- A general power of attorney confers a wide range of powers and the agent performs various functions. The principal can authorize the agent to sell, rent, buy, open bank accounts, manage healthcare, attend court proceedings, manage finances and other similar things.
Special power of attorney- This confers only specific or special power to the agent and the agent is bound to deal with limited matters only. An example of such POA could be the authority to sell or purchase a piece of real estate property.
Durable power of attorney and Non-durable power of attorney- Usually a power of attorney ceases to operate when the principle becomes incapacitated and such POA is termed as a non-durable Power of attorney. Conversely, if it is operational even after incapacitation, then it is a durable POA.
A power of attorney transfers the power to manage certain or general affairs of the principal to the agent. It is basically a delegation of power to perform certain functions, on behalf to the principal as his/her agent. An agent must therefore be a trustworthy person and has to keep an accurate record of all the transactions done on principal’s behalf.
The relationship between the principal and agent is a fiduciary relationship. The agent is legally required to act in the best interest of the principal. He has to perform functions as listed and described in the POA Deed. If the agent violates the terms or acts beyond the powers conferred, he can be liable for criminal charges or a civil suit can also be instituted against him.
It is highly recommended that the POA should be notarized in the presence of 2 witnesses. In case the purpose of making POA involves an immovable property, it is compulsory to get the deed registered in the sub-registrar’ office which has the jurisdiction.
The POA can be revoked when the purpose for which it was created gets fulfilled or due to lack of trust or non-performance by the agent. This can be done by executing a deed known as the revocation of power of attorney deed.
When the principal is unable to manage certain affairs, he can get those managed with the help of an agent appointed under POA. This helps in keeping the work up to date by transferring the power to handle the work into the hands of a trusted person which is the agent. The POA is a great option for NRIs. Since it is inconvenient for them to make physical appearances in India to deal with real estate, health, financial or legal matters, appointing an agent under POA turns out to be really helpful.
A solicitor or the NSW Trustee and guardian can prepare a power of attorney for you. The form must be witnessed by a barrister, solicitor, employee of the NSW Trustee, registrar of the local Court.
Two siblings can have power of attorney. In health issues, one family member can act as agent of another family member.
A power of attorney is valid till the death of the principal or the revocation of the POA. In a specific POA, it ceases after the completion of the particular adventure.
General POA allows the beneficiary to be changed at will by the representative. A limited POA allows the beneficiary to be changed only if it is specified in the document.
The principal himself can override the POA. In a medical POA, the family members can file a suit against the agent.
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