Power of Attorney

A Power of Attorney is a legal document that allows a person to act as the legal agent of another and perform certain tasks on behalf of the person. The agent acquires all or limited authority to make legal decisions about the person’s property, finances or medical care. Generally, a family member, spouse or friend is appointed as an agent through a Power of Attorney (POA) to make decisions in case of disability or illness.

Under the Indian Registration Act, registration of a general power of attorney is not mandatory but it is highly recommended to get the POA notarised in the presence of 2 witnesses. However, if the purpose of creating the POA involves an immovable property, it is compulsory to get the Power of Attorney registered with the office of Sub-Registrar which has the jurisdiction over the area where the principal resides.

Stamp duty needs to be paid for registration of the Power of Attorney and for it legally acceptable as evidence before the court. In case of non-payment of stamp duty, the POA cannot be used as evidence in case of legal conflict and the person executing the document can be fined for up to 10 times the original stamp duty.

For example, if an individual has bought a property in India and can’t be truly present to process the enlistment, he can designate these rights/obligations to any family member/companion by methods for an enrolled intensity of lawyer.

Types of Power of Attorney

A power of attorney is either a General POA or Special POA:

A General Power of Attorneygives broad legal powers to the agent and there is no specific or limited purpose mentioned in the document. The agent can act on behalf of the person for numerous purposes and represent the principal in legal matters. However, the principal has the power to put certain restrictions on the powers of agent by including a clause in the General Power of Attorney. Under a general PoA, expansive powers are allowed to the representative to settle on choices in the interest of the principal. In addition, the representative can likewise do the different transactions on behalf of the principal with no impediment on the number of transactions.
A Special Power of Attorney (SPA)enables the agent to only specific tasks on behalf of the principal. The powers of an agent are limited and no act can be performed beyond the prescribed limits in the special power of attorney. SPA’s are commonly used to perform certain business operations, banking operations, sale or purchase, taxation and court matters. If an agent performs any act beyond the limits of Special Power of Attorney, the principal cannot be made legally bound by it. In an extraordinary PoA, the intensity of the operator is confined and restricted to a particular reason. An exceptional POA might be transaction explicit and the POA stops on the fruition of transcation.
Durable POA: A strong POA stays compelling for a lifetime, except if it is unequivocally dropped. A particular condition can be embedded in the archive, expressing that the representative’s capacity would stay legitimate regardless of whether the chief gets weakened.

The Power of Attorney Registration Process includes the Following Formalities:

Drafting of the Power of attorney whether general or special, by a documentation lawyer in India.
Submitting the POA with the Sub-Registrar.
Attaching the supporting documents with the POA.
Attesting the POA before the Registrar.
Attesting of the POA by 2 witnesses.

Documents required for registration of a Power of Attorney includes:

Identification proof such as Aadhaar Card, Voter ID card, Driving License, etc.
Address Proof of Parties.
Passport Size Photograph of Parties.
Electricity Bill or Index II or Tax Receipt of the Property (if POA is related to some property).

Power of Attorney by NRI’s in India: How Power of Attorney helps NRIs manage their assets:

It has been made mandatory for NRIs to get their Power of Attorney registered, especially for property matters. For NRIs residing abroad, it is requisite to get the POA attested by the Indian consulate in the country and use the power of attorney within 3 months from the date it is executed. NRI Power of Attorney can be executed abroad for sale-purchase of property in India, banking purposes, investment, rent requirements, etc.

NRI Power of Attorney must be executed on a stamp paper as applicable in the country it is executed and the signature of the person making the POA must be authenticated by the Indian Embassy in the country.

In the event that you are living abroad and dealing with your advantages in India has become a headache for you, Power of Attorney (PoA) is the ideal instrument for you. On account of its different advantages, even occupant Indians will in general execute POAs. Individuals having various resources think that its difficult to be available wherever genuinely. Hence, they execute POAs to appoint the duty.

POA in Real Estate in India:

In land, POA could be utilized for the reasons referenced beneath:

Home loan, trade, sell, rent, gather lease, award, obtain
Oversee and settle the debates
Play out the goes about as required by banks, insurance agencies and go into contracts, manage bonds, and so forth.

Power of attorney by more than two persons:

In situations where a property has various proprietors, it would be hard for all the individuals to carry on a transaction. In such cases, allowing the intensity of the lawyer to one individual would make matters basic. Accordingly, this individual would be engaged to follow up for all the proprietors by and large..

How can the Power of Attorney be executed in India:

In the event that a NRI is available in India, he could before traveling to another country execute the POA from India itself.

Step 1: The NRI needs to get the ideal matter of the POA drafted and composed on non-legal stamp paper of satisfactory worth which is for the most part Rs 100.

Step 2: Along with the lawful agent and two observers, the individual is currently required to visit the Sub-Registrar’s Office.

Step 3: It ought to be guaranteed that all the people heading off to the Sub-Registrar’s Office are conveying their legitimate personality evidence. Copy of the POA, alongside the first duplicate, should likewise be brought.

Step 4: At the Sub-Registrar’s office marks, photos and fingerprints of the gathering will be gathered.

Step 5: Now, you have to gather the enrolled POA on the due date from the Sub-Registrar’s Office. This may take three-five days after the conventions have been finished.

What if you are outside India?

If you are settled abroad and won’t be able to visit India in the near future, you may execute a POA from the country of your domicile through the Indian Embassy/ Consulate. There is pair of way to execute a POA from abroad:

Legalisation:For this situation, marks of the public accountant or judge before whom the POA is executed are required to be confirmed by the properly authorized delegate of the Indian Embassy/Consulate. As indicated by Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948, notarising a deed from an approved official of the Indian Consulate/Embassy would be viewed as a substantial public accountant. Such a POA isn’t required to be stepped at the hour of execution. Nonetheless, it should be stepped inside a quarter of a year from the date of receipt of the POA in India. Stamp obligation would be payable as indicated by Section 2(17) read with Schedule-I of the Indian Stamp Act, 1899, when the deed is introduced for enrollment in India.

Apostilization:The deeds of POA executed outside India are demonstrated through an apostillisation procedure which is administered by the Hague Convention, 1961. Otherwise called super sanctioning, apostille is a declaration which affirms and confirms the mark/seal of the individual who validated the report. In any case, this deed, as well, needs to agree to Indian laws, for example, the Indian Registration Act, 1908, and the Power of Attorney Act, 1882. You additionally need to pay the stamp obligation on this.

Regulation of Power of Attorney:

A POA paper ought to be deciphered to incorporate all the essential forces for its execution. The POA must be given an exacting translation and no additional rights ought to be understood, except if they are explicitly referenced. For example, if the POA makes reference to “option to rent”, the “option to sell” can’t be credited to it.

The representative needs to act inside his degree and can’t tie the head by his demonstrations which are past his power. As a NRI, you can’t be sued or considered answerable for the extortion of the representative, except if it is demonstrated that the misrepresentation was done in intrigue with you.

Revocation of Power of Attorney:

A Power of Attorney may be revoked or cancelled if the purpose of executing the POA has been completed. Other reasons for revocation of a POA includes distrust between principal and agent, unavailability of agent, lack of performance by agent, etc.

A Power of Attorney is cancelled by executing a legal document called the Revocation of Power of Attorney Deed. It is a legal document laying down the facts that the POA must be cancelled and the powers of the principal must now be restored. If the POA was registered or notarised, the revocation deed must also be registered with the Sub-Registrar.

In the event that the chief feels that the legitimate representative is abusing the powers allowed to him or can’t appropriately release the obligations doled out to him, he has the alternative to deny the PoA. Revocation might also be required if the principal thinks that now he is in a position to take care of his assets.

How to revoke a Power of Attorney?

You may repudiate a POA during your lifetime.
POA is likewise denied when the chief is deceased or is mentally unstable or is pronounced indebted.
POA can be denied on commonly concurred terms between the principal and the representative.
A POA is denied when the particular transaction for which it was executed has been practiced.

Denial of POA must be done in a similar way in which it was executed. On the off chance that the POA was enrolled with the Sub-Registrar, you need to get it dropped from the same office. Additionally, the representatives and the parties concerned should be properly educated about the revocation of the POA. In the event that interests of a sensibly enormous number of individuals are included, it is suggested that a notification be distributed in a paper. A notification about the renouncement of the POA could likewise be posted on the property where it tends to be obvious to the general public.

Sale through POA is illegal:

There have been numerous situations where individuals resort to property deal through POA to dodge installment of stamp obligation, which is illicit. In addition, selling properties where the proprietor has just rights over belonging and no direct rights over possession through POA is additionally illicit. Appropriate exchange of title and possession can’t happen, if the deal is done through a POA and not by methods for a sale deed.