Power of Attorney
- Priyanka Sanyal
- Apr 10, 2023
- 3 min read
Written by Priyanka Sanyal, Student
Power of Attorney
A power of attorney basically grants the agent or agents permission to handle the grantor's property. It is granted by the grantor's signature on a document that designates the agent as the grantor's representative and grants the agent the same authority over the property that the grantor does.
Many individuals confuse the Power of Attorney (POA) with the will, but there are differences between the two, and they serve different purposes. In contrast to the Power Of Attorney, which is only effective while the person is still alive and expires upon death, the Will comes into effect after the person dies.
A Power of Attorney is either oral or in writing, depending upon the authority.
Kinds of Power of Attorney
1. General Power of Attorney – It is the power through which the grantor/principal appoints the agent to carry out a certain duty on their behalf. By filling out some formal documentation, the agent is given the necessary power. The word "GENERAL" indicates that the principal/authority grantor's or power should be broad in scope and not specified. It will not be regarded as a general power of attorney; rather, it will be referred to as a restricted power of attorney if the subject matter is specific and restrictions are noted during the filing process.
2. Special Power of Attorney – It is the power that the principal or grantor has granted to the individual to carry out some act or activities. The agent in this act is required to complete the tasks given to him on behalf of the principal/grantor.
3. Durable Power of Attorney – It is a power of attorney that expressly states that if the principal or grantor becomes mentally incapable, the agent or agents lose their authority to carry out the tasks they have been given. However, a power of attorney is considered durable if it expressly states in the legal document that it will continue to be effective even if the grantor or principal becomes mentally incapable.
Registration
Unless it generates an interest in any immovable property, i.e., a change in favour of the power of attorney holder, POA registration is not required. The registration of POAs is not required in India. Any power of attorney granted with regard to immovable property valued at more than INR 100 must be registered. It is usually essential to get a POA registered because doing so verifies the power of attorney document.
Grantor’s Capacity
A Grantor is a person who creates the POA. He can only do so when he is mentally fit to do it. He can accomplish it only when he is mentally capable of doing so. The power of authority will no longer be lawful if the grantor has a mental impairment after granting it. But there are always exceptions.
If the grantor becomes mentally incompetent, the grant may still be enforceable. This is referred to as a durable power of attorney.
It is impossible for someone who is already mentally incompetent to sign a legal power of attorney on his behalf.
The only way for the other party to act on behalf of a person who lacks durable power of attorney and is mentally incompetent is if the court establishes conservatorship or guardianship.
It is the principal's/grantor's duty to designate an agent who is capable of accepting the duty in good faith.
The best lawyers are those that represent their clients with the utmost impartiality and good faith. The attorney must be devoted to his principal or grantor and must not reveal any of the principal's or grantor's private matters.
Duties of Power of Attorney Holder
The person who has been given authority is referred to as the authority holder.
The person who has been given authority must not go beyond what has been granted to him or her.
If the person to whom the authority has been granted goes beyond the allotted amount, they may be held accountable for any losses incurred by the grantor.
If there is a legal instrument that specifies how the work should be done, then the attorney holder is only required to complete the tasks that have been given to him in that manner.
Except in the case where he acted properly, the authority holder is responsible to the grantor/principal if a condition is violated.
A lawyer must only transfer his authority and responsibilities to another person with the consent of a power of attorney.
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