This article on ‘Power of Attorney in India‘ was written by Arpita Tiwari, an intern at Legal Upanishad.
INTRODUCTION
A power of attorney (POA) is a crucial legal instrument that enables a person to designate some other person or entity to handle his or her money, health problems, and assets (Power of attorney for the property) while he or she is away. The primary, provider, or giver in this relationship is the individual who grants another individual the power to make decisions in her place. The broker or authority of the attorney agent is the individual who has been given authority.
This article deals with the eligibility criteria for the power of attorney and the procedure for selecting the power of attorney in India followed by the revocation of the power of attorney and their types. In addition, the author will discuss the stamping procedure, the registration process and the responsibility of the attorney bearer and at the end, I will conclude my paper with references.
WHO IS ELIGIBLE TO SERVE AS A POWER OF ATTORNEY?
To be qualified as a power of attorney the individual must have attained the age of majority i.e; 18 years and he is of sound mind then the particular individual is eligible for PoA. Prior to designating someone as a POA, it’s crucial to take their values and personality into account. The individual who is qualified for POA should be capable of making choices with clarity and conviction.
CAN MORE THAN ONE POWER OF ATTORNEY BE CHOSEN?
Well, the answer to this question is yes, the person has the option of choosing several attorneys and deciding whether they should work together or independently when making decisions. Taking a reasonable judgement is really aided by having multiple attorneys present all the benefits and drawbacks. Yet, there are times when different lawyers may have opposing views, which could lead to an extension in making a crucial choice. Instead of counting on a single PoA agent, it is wise to keep a backup. The backup agent can take over if the primary agent becomes ill or hurt.
WHAT IS THE PROCEDURE FOR SELECTING THE POWER OF ATTORNEY IN INDIA?
The scope of the approved PoA assistants has the power to decide legal as well as other choices regarding the assets, health problems, and funds can vary according to the terms of the PoA contract. Also, a person must be eighteen years old and of sound mind in order to work as a PoA agent.
The advice given below may be useful while choosing a PoA.
- Select a dependable individual to handle your accounts and property while you are away. Furthermore, you can choose an employee relying on their duties. The type of PoA can also be chosen based on the tasks that need to be accomplished.
- Anybody has the power to determine who has PoA as well as when the authority begins and ends.
- There are numerous PoA documents which are available online. Observe the guidelines set forth by your state’s legislature.
- The PoA can be made with the aid of an estate or general attorney.
- Complete the required forms and sign all the paperwork linked to the estate.
- Check the papers’ signatures with a lawyer (a property lawyer if the forms relate to the property) and get the paperwork notarized (Power of attorney for the property)
WHAT IS THE PROCEDURE FOR THE REVOCATION OF THE POWER OF ATTORNEY?
As far as the individual who granted the power of attorney (PoA) remains mentally sound and competent, it may be revoked or rescinded at any time. If the donor wants to revoke a Power of Attorney, they must do so in writing, sign it before a notary public, and then transmit the document to the attorney-in-fact. Every third party with whom the agent interacts must get the letter. The revocation letter must be written on the identical grounds as the power of attorney if it was completed there.
TYPES OF POWER OF ATTORNEY
There are four types of PoA:
- General Power of Attorney:
A general power of attorney is a situation where the principal signs a document granting the representative general authority to carry out particular actions in his place. The word “generic” in this context refers to the need that the authority must be comprehensive with regard to the topic at hand rather than with reference to authorities with reference to a particular subject. It will not be considered a generic power of a lawyer if the actual content is constrained to something particular or is clearly indicated by the senior while creating a document. If this situation exists it will be called a restricted power of attorney.
- Durable Power of Attorney
A power of attorney that clearly states otherwise, the assistant’s authority expires when the principal is not mentally fit. If it will happen in the future that the principal becomes incapable, the power of attorney may, nevertheless, state that it will continue to be in effect. It is referred to as a durable power of attorney when it contains this clause.
- Special Power of Attorney
A special power of attorney allows the principal to choose someone to carry out one or more specific tasks. Under this kind of power of attorney, the representative is given the authority to perform the duties on behalf of the principal in unique or particular activities.
- Medical or Healthcare Problem of Attorney
The principal retains the freedom to choose the kind of treatment they would like in the event that they fall extremely ill. In the event of a life-threatening disease, a medical or healthcare POA enables the representative to decide things on behalf of the principal. As they contemplate the possibility that the principal may be too ill to decide for himself or herself, the majority of health POAs are considered sustainable.
Before selecting a representative in any of the aforementioned situations, the principal should consult with counsel. Also, it is important for the principal to have the counsel guide them through each stage of notarizing a power of attorney so that they are aware of what is required in the instrument.
STAMPING PROCEDURE FOR POWER OF ATTORNEY IN INDIA
If a General Power of Attorney (GPA) is signed without receiving any payment on the behalf of a parent, sibling, daughter, grandchild, wife, husband, son, granddaughter, or another close family, the registration fee of Rs. 500 will apply.
When we are transferring a general power of attorney to anyone who is not our close relative for money, stamp duty is assessed based on the market value of the asset in question or the consideration price.
If the Power of Attorney (PoA) is granted on behalf of the father, son, daughter, mother, brother, grandson, sister, wife, husband, granddaughter, or another close relative, there is an additional stamp fee of Rs. 100 that also needs to be paid.
In all other circumstances, registration fees are assessed at a rate of Rs. 10 per Rs. 1000, with a nominal price of Rs. 100 and a high tax of Rs. 30,000, depending on whichever is higher: the asset’s market worth or the consideration price.
IS IT NECESSARY TO REGISTER THE POWER OF ATTORNEY IN INDIA?
The registration of PoA is not required until and unless it generates interest in the immovable property i.e., a transformation in favour of the power of attorney bearer.
The registration of POAs is not required in India. Any power of attorney granted with regard to real estate valued at more than INR 100 should be registered. It is usually essential for having a POA registered because doing so verifies the power of attorney document.
RESPONSIBILITIES OF THE PERSON HOLDING THE POWER OF ATTORNEY
The individual who has been provided authority is called an authority bearer.
- The individual who has been provided with authority must not go beyond what has been given to them.
- The individual who has been provided with the authority he or she should not exceed the limits of those authorities otherwise he or may be held accountable for the harm sustained by the originator.
- The attorney bearer is only necessary to finish the task that is allotted to him and if it is mentioned in the PoA that he has to do the task in a particular way with a particular technique.
- The power holder is accountable to the grantor/principal if a provision is broken unless he acted appropriately in that case.
- A lawyer can only transfer his authority and responsibilities to another person with the consent of a power of attorney.
CONCLUSION
If the attorney bearer breaches their fiduciary duty, a power of attorney is a crucial legal instrument that can be used as testimony in court. So, the principal must have complete faith in the attorney which he has chosen. A representative ought to be somebody the principal can fully rely on to utilise his assets solely for his benefit and not for their own or anybody else’s.
REFERENCES
- Power of Attorney, Retrieved: https://bhattandjoshiassociates.com/power-of-attorney/
- Abhijit Mishra, All about power of attorney, Retrieved: https://www.lawinsider.in/columns/all-about-power-of-attorney
- Yash Koshal, Power of Attorney, Retrieved: https://blog.ipleaders.in/power-of-attorney/