Top 2 Best Types of Power of Attorney For Property
Many a time I have observed in various working places that people do carry very wrong perceptions regarding the Power of Attorney in India. To simplify, we just misjudge or misunderstood the whole concept Power of Attorney and the reasons for which it has been resorted to by many.
In a general sense, you must have a clear picture of it due to its implication in our various working fields. So, today I have decided to write a blog post on Power of Attorney in India along with its types, features, and benefits.
⇒Power of Attorney in India-Definition
Power of Attorney in India is an instrument or document in which a person being a principal, appoints another person as his agent and confers authority to perform certain acts on behalf of the principal.
Therefore, a Power of Attorney is an agreement by which a person(Principal) confers his authority to another person to act on his behalf and in his name.
Here, the person who gives Power of Attorney is referred to as the donor and the person who acts on his behalf is referred to as the Attorney.
In simple words, I can say that the Power of Attorney in India is an instrument of empowerment to a specified person to act on behalf of the donor or principal.
⇒Power of Attorney in India-Types
A Power of Attorney can be classified into two types viz;
1. General Power of Attorney in India
When the powers which are conferred upon the agent is General in regard to the subject matter it is called a General Power of Attorney.
For example, Power of Attorney for sale of a property, managing proceedings of the Court, perform certain financial transactions, etc.
2. Special Power of Attorney in India
When the power of authority is conferred upon the attorney or agent by the donor to act in his name for a specified transaction only it is called a Special Power of Attorney. For example Special Power of Attorney for a specific court case.
⇒Power of Attorney in India-Features
- Power of Attorney does not mean that the agent or Power of Attorney holder owns any property of the client;
- The donor can withdraw or revoke the Power of Attorney any time he wants as long as he is of sound mind;
- It does not allow or gives the right to the agent to manage the donor’s own affairs;
- It delegates very nicely the powers which the agent can enjoy with determining some responsibilities and not more than that;
- Married women can execute Power of Attorney even if she is a minor;
- A Power of Attorney can be revoked automatically when the principal dies or becomes bankrupt;
- It can be revoked at once the purpose of Power of Attorney is fulfilled;
- Most importantly a Power of Attorney is to be authenticated by documentary evidence as per Section 85 of the Indian Evidence Act, 1872. This means it has to be Notarized in any Court;
- As per Companies Act, 2013, a company may by writing under its common seal authorize any person to execute any deeds on its behalf to act as attorney and this will bind the company;
- A Power of Attorney is subjected to Stamp Duty as per the Indian Stamp Act.
⇒Power of Attorney in India-Benefits
- A Power of Attorney in India is not subjected to Registration. This is optional. This means it is a little bit cost-effective;
- The main notion of having a Power of Attorney is that its principles should be strictly construed, providing the principal a sigh of relief;
- The main benefit of this is that the agent or attorney cannot act on his own. He must abide by the notions of the Power of Attorney in India;
- Most importantly, the fraudulent acts performed by the agent does not bind the principal legally. Therefore, he can’t be sued or held responsible for such frauds or misdeeds performed by the agent;
- A Power of Attorney restricts the agent to act within his specific powers or limitations. He can not overdo his powers and the principal shall not be held guilty if he misuses his powers;
- The benefit of revocation of Power of Attorney gives the principal full authority to withdraw or suspend this at any moment if he finds any misdeeds on behalf of the agent itself.
⇒Who can give a Power of Attorney in India?
Basically, the following three can appoint a power of attorney:
1. An Individual:
- A person who is of sound mind can appoint a power of attorney in India;
- A person who is not a minor;
- Married minor women also can employ a person as an agent ;
2. Partnership Firms:
A partner in a partnership firm acts as an agent of the firm. A partner does not have any right to bind the firm and he is regulated by the Partnership Act.
However, if a partnership firm deems fit then may confer the power of attorney to any of the partners, which needs authentication from all the partners consisting of the firm. It should be signed by all the partners.
3. A company:
As per the Companies Act, 2013, a company if intends, may in writing under its common seal empower a person either generally or for any specified purposes as its attorney to execute a deed on its behalf anywhere in the world.
The deeds so signed by the attorney on behalf of the company using his seal shall have a binding effect on the company as if it were executed under its common seal.
Therefore, it should be a prerogative for a company to pass a resolution by the Board of Directors for such power of attorney in India and it is given under its common seal.
⇒Who can authenticate a Power of Attorney in India?
Section 85 of the Indian Evidence Act 1872, presumes that every legal document purporting to be a power of attorney and to have been executed before and authenticated by a Notary public or any Court, Judge, Magistrate Consul or representative of the Central Government was so executed and authenticated.
This does not mean mere attestation but assured himself of the identity of the person who signed the instrument as well as the facts of the execution.
Final Word on Power of Attorney in India
I hope that after reading this blog post, everyone will get a brief idea of what Power of Attorney is all about. I have tried to keep things very simple for easy understanding. Finally, I hope that I have done enough justice to this post on Power of Attorney.
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