A power of attorney (POA) is a legal document or an instrument giving a person (agent) wide powers to govern matters on behalf of another person (principal). A letter of attorney is a written authorization to act on behalf of another person in, business, private affairs or some other legal matter. The appointee can be granted with several rights, such as the right to sign a contract on your behalf, the right to handle your monetary transactions, the right to sell your property or any other legal right.

According to Indian law, a POA is a legal document that has to be properly drafted using the right legal terminology with the objectives and responsibilities that you wish to authorize the appointee to pursue on your behalf.

Power of attorney is a legal document whereby one person gives the authority to another person referred to as an “Attorney” to act on his behalf or represent him in anything such as legal, financial or property, etc.

Mostly this instrument is granted where a person is ill or residing in another city or residing in a foreign country for any other reason etc.

There are two different power of Attorneys granted Specific or General power of attorney (SPA) or (GPA)

In SPA a grantor gives the appointee very limited powers, to do a certain act, such as authority to sell property on the appointer’s behalf.

GPA serves the appointee with several rights and very broad powers, to execute any legal act on behalf of the appointer. This type of a Power of Attorney authorizes to perform bulk activities of appointer that he wants to perform. GPA is an attorney where a person gives general authority to his agent or attorney to act on his behalf in any respect regarding his movable and immovable assets such as land, house, buildings, etc.
For an attorney to be valid under Indian law, it must as per the provisions under law. In a court of law, if there is a dispute concerning the scope of the power of attorney, the interpretation of the court is always strict. Therefore, the legal document should grant the responsibilities clearly so that the functions are specific and comprehensive.

FOR A PERSON RESIDING ABROAD

The provision to have a Power of Attorney is a blessing for NRI’s to carry out their activities in India without their presence being required. However, there have been numerous cases of misuse of the POA, hence care should be taken while drafting a POA. Doing this without proper advice and consultation is not advisable. Engaging services of a professional is suggested, the legality of the document and procedure of the same.

• The Deed must be made on a plain paper and attested in the Indian Embassy or by a Notary from the concerned State/country.
• The Grantor of POA should place his/her signature in all pages.
• The deed should be sent by registered post to an address in India in the name of a person (Grantor).
• The person to whom the deed is sent should get it registered from the local Sub-Divisional Magistrate or Sub-Registrar office in India, by submitting the appropriate registration charges applicable in concerned State.

It may be sage to consult one for advice about the powers being conferred, and to make sure your document meets all legal requirements. The powers granted in a POA must be limited for the purpose it is issued. The grantor must read and understand the contents of the deed/document before issuing it to any person. A power of Attorney holder is an agent. POA holder does acts on behalf of the principle and it is a fiduciary relationship between the principal and agent which is created between them.

The power granted may include execution of all contracts, deeds, bonds, mortgages, notes, checks, drafts, money orders. which may include, execution of all contracts, deeds, bonds, mortgages, notes, checks, drafts, compromise, settle, and adjust all matters pertaining to lease, collect rents, grant, bargain, sell, or borrow and mortgage, to sell any and all shares of stocks, bonds, or other securities.

The attorney can also authorize an attorney holder to file, sign all tax returns, manage banks, property taxes, collect rents, pay property tax, collect rents, insurance forms, any other documents, enter into any contract, and to perform any contract, agreement, writing, or thing to make, sign, execute, and deliver, acknowledge any contract, agreement. The Principal can grant powers to an attorney to act on his behalf in a pending litigation, make statement on behalf of the Principal, file a case if needed, appear before the court and in case when needed he can sue on behalf of principal on the basis of the Power of Attorney.

A person may grant a person the powers to sell the property on his behalf or enter into an agreement to sell on his behalf. This document must be given to very trustworthy family or friends. The deed must be drafted after a consultation from a lawyer.

The first and foremost step the team takes where the client approaches the firm is to understand the purpose of drawing up such document. Based on the detailed and comprehensive understanding and reviewing the matter; the power of attorney is drafted. Each power in the attorney is explained to the client for him to know what has been written in this deed and the powers he is granting through this POA. The objective is to ensure the interest of the client and the rights of the Client is protected.

Consultation and Needs Assessment

• Understanding Client’s Needs: The legal team will first have a thorough consultation with the NRI client to understand the specific requirements (property management, legal representation, financial transactions, etc.).
• POA Type Recommendation: Based on the client’s requirements, they will advise on whether to opt for a General Power of Attorney (GPA) or a Specific Power of Attorney (SPA).
• Purpose and Scope: The firm will assess the purpose for which the POA is needed, ensuring the scope and powers granted are clear, limited, and in line with the client’s best interests.

Drafting the Power of Attorney

• Custom Drafting: The firm drafts the POA document tailored to the NRI’s specific needs, including precise and legally correct language, to ensure clarity in the powers granted.
• Inclusion of Safeguards: The legal team ensures the document includes provisions that protect the client’s interests, such as limitations on the powers of the attorney and conditions under which the POA can be revoked.
• Fiduciary Considerations: The attorney holder’s duties will be clarified, maintaining the fiduciary relationship between the principal (NRI) and the attorney (agent).

Legal Review and Advice

• Comprehensive Review: The legal firm will thoroughly review the POA draft with the client to ensure full understanding of the rights and responsibilities it entails.
• Risk Mitigation: Legal experts will assess any potential risks or areas where misuse could occur, offering advice on mitigating those risks.
• Client Approval: The firm will ensure that the NRI client is completely satisfied with the draft and understands all clauses, including powers granted to the attorney holder.

Authentication of POA Abroad

• Attestation by Indian Embassy/Consulate: For NRIs residing abroad, the firm will guide them through the process of getting the POA attested by the Indian Embassy/Consulate or a Notary Public in the country of residence.
• Witnessing of Signatures: The firm will ensure the client signs the document in the presence of the appropriate authorities (Notary/Consulate) and that all formalities are followed.

Sending the POA to India

• Registered Courier Services: The firm will assist in sending the attested POA to a trusted person in India by registered mail or courier to ensure it reaches the designated person securely.
• Registration Process: Once the POA is in India, the designated person will be guided on how to get the document registered with the Sub-Registrar or Sub-Divisional Magistrate in India, including payment of registration charges and stamp duty.

POA Registration in India

• Sub-Registrar/Sub-Divisional Magistrate: The legal firm will either assist the designated person in India or coordinate with local authorities to ensure the POA is officially registered and legally valid.
• Ensuring Legal Compliance: The firm ensures that the registration process complies with local laws, including state-specific stamp duty and other applicable regulations.

Post-Execution Services

• POA Management: The firm will assist the NRI in monitoring the actions of the attorney holder, ensuring compliance with the powers granted in the POA.
• Reporting and Accountability: Legal help for NRIs includes ensuring that the attorney holder reports back on actions taken, such as property transactions, tax filings, or legal actions.
• Dispute Resolution: If any dispute arises regarding the POA’s scope or validity, the firm will represent the NRI in court and handle any litigation associated with POA misuse or misinterpretation.

Revocation and Modification of POA

• Revocation: If needed, the firm can help the NRI revoke the POA by preparing a revocation letter and ensuring that it is registered in India and communicated to all relevant parties.
• Modification: If circumstances change, the firm will assist in modifying the existing POA, ensuring the changes comply with legal requirements.

Specialized POA Services

• Real Estate POA: For NRIs involved in property transactions in India, the firm can draft POAs granting the attorney the right to manage or sell property on behalf of the client.
• Tax and Banking POA: The firm may draft POAs that grant authority to handle tax matters, file returns, or manage banking transactions in India.
• Litigation POA: The firm can draft POAs allowing the attorney to represent the NRI in ongoing or future legal disputes in Indian courts.