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Power of Attorney
A “Power of Attorney” is a legal instrument whereby one person gives another person the authority to act on his/her behalf as his legal representative and to make binding legal and financial decisions on his/her behalf. In Strouds judicial dictionary “Power of Attorney is defined extensively as an authority whereby one is set in the stead or place of another to act for him.
It is pertinent to mention here that a person need not be a lawyer to hold a Power of Attorney as an Agent for someone else.
The Power of Attorney can grant considerable powers to third party to act on your behalf. Therefore, before you sign your name to legal contracts, you should give careful consideration to the person to whom you choose to grant those powers, and whether any limits should be imposed in the time the Power of Attorney will last, or in its scope.
Granting a Power of Attorney is a legal process that involves the drafting of a document which assigns to another person the power to act as your legal representative.
Every adult has day-to-day affairs to manage. Many a times even when joint ownership situations exist it is not possible for a spouse or child to act for in the event of catastrophic illness or injury to him. The lack of properly drafted and executed Power of Attorney can lead to a lot of complications when an individual is incapacitated due to severe illness or injury rendering him/her, unable to travel, unable to make decisions or manage financial and medical affairs.
It often happens that, due to ignorance of law, people fail to make a proper Power of Attorney. It must be remembered that it is preferable that one should make a Power of Attorney to avoid the inconvenience and expense of legal proceedings. It must be done while the Principal is competent, alert and aware of the consequences of his/her decision.
The Power of Attorney can be effective immediately upon signing or only upon disability. Some examples of legal powers contained in the Power of Attorney are the following ( only inclusive not exhaustive)
- To execute all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders.
- To manage, compromise, settle, and adjust all matters pertaining to real estate.
- To lease, collect rents, grant, bargain, sell, or borrow and mortgage
- To enter into contacts
- Perform any contract, agreement, writing, or thing
- To make, sign, execute, and deliver, acknowledge any contract, agreement
STOCKS, BONDS, AND SECURITIES
- To sell any or all shares of stocks, bonds, or other securities
- To make, execute, and deliver any assignment or assignments, of any such shares of stocks, bonds, or other securities.
BANK ACCOUNTS, CERTIFICATES OF DEPOSIT, MONEY MARKET ACCOUNTS
- To add to or withdraw any amounts from any of the Bank Accounts, Certificates of Deposit, Money Market Accounts, etc.
- To make, execute, endorse, accept and deliver any and all cheques and drafts
- Execute or release such deeds of trust or other security agreements as may be necessary
- Deposit and withdraw funds, acquire and redeem certificates of deposit, in banks, savings and loan
TAX RETURNS, INSURANCE AND OTHER DOCUMENTS
- To file, sign all tax returns, insurance forms and any other documents
- To represent in all matters concerning the foregoing.
TYPE OF POWER OF ATTORNEY
Every act performed by your Agent within the authority of the Power of Attorney is legally binding upon the persons granting it. A Power of Attorney should be given only to a trustworthy person, and only when absolutely necessary. The person who empowers is the Principal and the person to whom the power is conferred is the Agent
There are two types of Power of Attorney; “General” and “Special” (or limited).
A General Power of Attorney:
- The Principal empowers the Agent with the right to carry out all legal acts on his behalf without restricting it to a particular transaction or act,
- Gives the Agent very broad powers to act on behalf of the Principal
A Special Power of Attorney:
- The authority is restricted to act only on certain matters or only a particular kind of transaction or to carry out a specific legal transaction for the Principal.
- The Agent’s Power of Attorney expires on the completion of the transaction
POINTS TO REMEMBER
- The general rule of Power of Attorney is that it should be strictly construed.
- Unless an express power is conferred on an Agent to enter into contracts of guarantees on behalf of his Principal or to execute or negotiate, negotiable instruments for his Principal jointly with others
- An Agent cannot by his acts bind the Principal to a larger extent than he is empowered to do under the Power of Attorney.
- Fraud by the power Agent does not bind the Principal. He cannot be sued or otherwise held responsible for fraud by the Agent.
- If the power does not authorize the Agent to carry on a business except with limitations any act done by him in excess of such power will not bind the Principal.
- For example power to dispose of property does not confer a power to mortgage the property.
- Power to manage immoveable property cannot permit Principal’s ornaments which are a moveable proper.
IMPORTANT RULES FOR CONSTRUCTION OF POWER OF ATTORNEY
- The operative part of the deed is controlled by the recitals.
- Where authority is given to do a particular act, followed by general words, the general words are restricted to do what is necessary for the proper performance of the particular acts.
- General words do not confer general powers, but are limited to the purpose for which the authority is given, and are construed as enlarging the special powers only when necessary for that purpose.
- The deed must be construed so as to include all powers necessary for its execution.
REVOCATION OF POWER OF ATTORNEY
Power of Attorney can be revoked or would stand revoked if :
- Revoked by the Principal himself
- The Principal dies or becomes insane or becomes bankrupt
- The business for which the Agent was appointed is over
- Mutually agreed upon by the Principal and Agent.
- The right under the Power of Attorney is renounced by the Agent.
REGISTRATION OF POWER-OF-ATTORNEY
- Registration of Power of Attorney is not compulsory. it is optional.
- In India, where the Registration Act, 1908, is in force, the Power of Attorney should be authenticated by a Sub Registrar only, (Whenever a person signs the document and his attorney presents/ admits execution).
- In other areas, attestation should be by a Notary or Diplomatic Agents.
- In case an attorney under a valid Power of Attorney himself signs a document, he may, as an executing (signing) party present/admit execution of a document though it is attested by a Notary, unless the text of the power specifically excludes such powers.
- Foreign Power of Attorney should be got stamped by the Collector after its receipt in India within prescribed time of 3 months.
- Registration of Power of Attorney authenticates the deed of Power of Attorney.
- Power of Attorney shall be attested by two or more adult independent witnesses who are of sound mind.
- If a Power of Attorney is in respect of an immovable property of value more than 100 INR it must be registered.
If the power does not authorize the Agent to carry on a business except with limitations any act done by him in excess of such power will not bind the Principal./li
Fraud by the power Agent does not bind the Principal. He cannot be sued or otherwise held responsible for fraud by the Agent./li