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WHAT IS A POWER OF ATTORNEY?

Power of Attorney is a legal instrument signed between two parties, principal and agent, wherein the latter is authorized by the former to act on his behalf. The Power of attorney can be executed by a person in favor of any person and not only an advocate.

Section 2(21) of the Indian Stamp Act 1899 defines “Power of Attorney” as:

‘“power of attorney” includes any instrument (not chargeable with a fee under the law relating to court fees for the time being in force) empowering a specified person to act for and in the name of the person executing it’.

Section 1A of the Power of Attorney Act 1882 defines Power of Attorney as:

“In this Act, Power of Attorney includes any instrument empowering a specified person to act for and in the name of the person executing it”.

UNDER WHAT PROVISIONS IS POWER OF ATTORNEY GOVERNED?

Section 18 provides that the registration of documents not listed in Section 17 is optional. Hence, the registration of a power of attorney is optional. Section 33 of the Registration Act 1908 provides for the power of attorney that shall only be recognized under Section 32(c) of the Act.

The Power of Attorney Act 1882 lays down the law relating to power of attorney and provides for the procedures for execution of the power of attorney, cases of payment done by done/ agent under PoA, deposits of original instrument creating power of attorney, and power of attorney executed by a married woman.

Basically, the Power of Attorney is a contract of agency and is governed by the principles of Agency under the Indian Contract Act 1872.

TYPES OF POWER OF ATTORNEY

There are two types of Power of Attorney:

1. General Power of Attorney – When a principal empowers the agent to act on his behalf in general and not for a specific case, then such an instrument executed is called a General Power of Attorney. This can include authorization to operate bank accounts, register property on behalf of the principal etc.
2. Special Power of Attorney – When a principal empowers the agent to act on his behalf to perform a specific task or purpose, then such an instrument executed is called a Special Power of Attorney. A special power of attorney is different from the general power of attorney. When any person wants to get any particular or specific act done, and he is not in a position to do it himself due to reasons like being abroad, or hospitalized, or traveling, or aged, or infirm, etc., he requires the help of someone else. But, he cannot orally entrust someone to act on his behalf. In such cases, Special Powers are given to the persons by making a deed of Special Power of Attorney. The Special Power of Attorney should be granted only for a particular or a specific act to be performed by the attorney. There should not be any generalization of power granted. It should be very specific and clearly stated as to what exactly is the nature of work that the attorney has to perform.

ESSENTIAL INGREDIENTS OF SPECIAL POWER OF ATTORNEY

1. Details of Grantor – Name, Age, and Address of the person who grants the power to the attorney should be clearly stated in the first paragraph
2. Attorney’s Details – Name, Age, Parentage, Address, and Occupation of the person to whom the power is granted should be described next.
3. Reason for giving power – The valid reason for granting the power should be stated clearly, for example, staying abroad, or hospitalization, etc.
4. Details of Work – Details of the particular or specific act that the attorney has been authorized to perform must be mentioned. For example, to present a document for registration, or power to appear in a court case.
5. Date and Place – The Date and Place of execution of deed should be stated and also the date when the power starts operating should also be stated separately.
6. Signature of Grantor – The Grantor has to make his signature at the end of the document and also at the bottom of all pages.
7. Signature of two witnesses – At the end of the document, there should be the name, address, and phone number of the two witnesses who have witnessed the grantor signing the deed.

HOW TO MAKE SPECIAL POWER OF ATTORNEY LEGALLY VALID?

1. The Special Power of Attorney deed can be attested by a notary public with the seal and signature if it is not involving any immovable property.
2. Special Power of Attorney deed is required to be compulsorily registered from the office of sub-registrar where the property is situated if an immovable property of a value of Rs. 100 or above is the subject matter of the deed.  

CAN PEOPLE LIVING ABROAD CREATE A POWER OF ATTORNEY?

Yes. If any person is living abroad, he can create a power of attorney by following these steps:

1. Draft the deed on a plain white paper.
2. Attest the draft from Indian Embassy or consulate in that country by a notary there.
3. The grantor has to sign on all pages of the deed.
4. Send the attested Power of Attorney deed to a known person in India by post.
5. Person to whom you send the deed should get it registered in the appropriate Government Office as per the state rules.

HOW CAN ONE REVOKE A POWER OF ATTORNEY?

If the grantor dies, the Power of Attorney is ipso facto revoked and the attorney can no longer act on the behalf of the Grantor.

A grantor can also cancel the Power of Attorney by revoking the same. This can be done by the Grantor or the renunciation of the right by the Attorney. It can also be done by mutual consent.