Procedure for Registration of Power of Attorney in India & Abroad

This article talks of how to register for Power of Attorney in India and abroad, and explores the associated clauses and nuances, including the validity, types of POA, its content, and credentials.

A Power of Attorney is a formal instrument by which one person empowers another to represent him or act in his stead for certain purposes.

The term “Power of Attorney” is defined under Section 1A of the Power of Attorney Act, 1882 and includes any instrument empowering a specified person to act for and in the name of the person executing it.

The legal authority of the agent to act on behalf of the principal is limited to the extent that the same is clearly specified and authorised under the instrument. It may be general and broad or specific in nature.

A Power of Attorney (POA) is a unilateral instrument and does not require the consent or signatures of the agent and remains to be valid only during the lifetime of the principal.

There are two kinds of Power of Attorney:

1. A General Power of Attorney (GPA) is one by which authority is given to act for the executor in all matters, or in all matters of particular nature, or concerning a particular business. This POA type confers sweeping and sometimes unlimited powers.

2. A Special Power of Attorney (SPA) is one by which authority is given to do particular and specified act. This POA type confers limited powers and should be the first choice if circumstances allow.

Contents of Power of Attorney:

A Power of Attorney document, whether GPA or SPA, is drafted on behalf of the person (Executor) who wishes to appoint a person to conduct tasks on his / her behalf (Attorney). The document has the following essential features:

1. A clear identification of persons who would be Executor and Attorney, respectively, with their addresses and identity clearly defined.

2. A clear and careful definition of the powers that need to be transferred to the Attorney.

3. Registration/authentication of the POA document.

Validity of Power of Attorney

Generally, a Power of Attorney continues to remain valid and in force during the lifetime of the executor. However, the same may be revoked or cancelled at any time so long as the executor is mentally fit and competent.

Registration of Power of Attorney in India

A Power of Attorney requires authentication as provided under Section 85 of the Indian Evidence Act, which reads as under:

“The Court shall presume that every 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 [Indian] Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated.”

Authentication means establishing the authorship contemplated by the section, it does not merely mean attestation, it means that the person authenticating it has assured himself of the identity of the person who had signed the instrument as well as the fact of execution.

• Notary Public
• Court
• Judge
• Magistrate
• [Indian] Consul or Vice Consul
• Representative of the Central Government

Registration of Power of Attorney outside India

• Power of Attorney executed outside India should be authenticated before any of the Indian Consulates in that country.
• It ought to be stamped within three months of receipt in India with the applicable stamp duty.
• Alternatively, a person may also proceed to get the Power of Attorney apostilled, if it is done from any country being a member of the Hague Convention.
• The deed must necessarily align with Indian laws, including the Indian Registration Act and Power of Attorney Act.

Credentials:

• The firm should draft and facilitate the execution of the Power of Attorney both before the notary public and the Registrar.
• The Power of Attorney executed before notary public should be for general property management purposes such as the collection of debts, receiving sums of money, borrowing money, managing trust and estate, letting out property and collecting rents, appointing agents, and servants, selling goods, to take and defend legal proceedings, settle, and compromise disputes both in pending and ensuing litigations, etc.
• The Power of Attorney registered before the Registrar of Assurances must be for selling and buying of property, mortgaging property, etc.

Conclusion

A Power of Attorney is an instrument that can be misused easily, and it is mandatory to understand the nuances and clauses associated with it. Furthermore, the process for registration of Power of Attorney can be challenging to navigate, especially for those abroad. It is, thus, mandatory to consult a legal firm about the registration process and ensure a secure experience.

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