What is a Power of Attorney?
A power of attorney is a legal document by which one person (the principal) appoints another person to act as an agent on his or her behalf, thus conferring authority on the agent to perform certain acts or functions on behalf of the principal. Powers of attorney are routinely granted to allow the agent to take care of a variety of transactions for the principal.
Section: 1A of Power Of Attorney Act, 1882, gives a simple definition: ‘a “Power Of Attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it.’
Types of Power of Attorney
In India, Power of attorney mainly is of two types-(1) General and (2) Specific.
General Power of Attorney: A general power of attorney is one by which an instrument is executed by the principal authorising the agent to do certain acts in general on his behalf. The word ‘General’ here means that the power must be general regarding the subject matter and not general with regard to powers in respect of a subject matter.
Special Power of Attorney: A special power of attorney is one by which a person is appointed by the principal to do some specified act or acts. In this type of power of attorney, an agent conferred with a power to do specific act in a single or specified transactions in the name of the principal.
The test to determine under which category a given document falls is as to what is the subject matter in respect of which power is given and if it is restricted to some specific matter it is specific else it is general.
Who can grant power of attorney?
As per Sec.183 of the Indian Contract Act, any person who is of the age of majority according to the law to which he is subject, and who is of sound mind, may employ an agent.
A minor cannot give a power of attorney, except in cases where he can legally enter into a contract. A corporation can give a power of attorney. A power of attorney issued by a partnership firm must be signed by all the partners, otherwise, it is held invalid.
Who can be appointed an attorney?
According to Section 184 of the Indian Contract Act, any person may act as an agent but a minor or a person of unsound mind cannot become an agent, so as to be responsible to his principal. It may be noted that the authority of an agent may be express or implied. An agent can do all the lawful acts that are necessary, in order to perform the act for which he has been given the power of attorney.
Delegatus Non Potest Delegare
Delegatus Non Potest Delegare is a Latin maxim which means that a delegated authority cannot further delegate. This is one of the fundamental principles of the law of agency, that an attorney cannot delegate his powers, unless there is an express provision in the power of attorney. When a higher authority delegates an authority or decision-making power to a person or institution, that person or institution cannot delegate such authority to another unless there is explicit authorization for it in the original delegation.
The maxim delegatus non potest delegare is subject to certain well-recognised exceptions as provided under Sec. 190 of Indian Contract Act: (i) where an authority to delegate is implied, generally on the ground that there is no personal confidence reposed or skill required, and the duties can be equally well discharged by any person; or (ii) where the very nature of the employment necessitates a partial or total delegation; and (iii) the power to employ a sub-agent may be conferred by the usage of a particular trade or may be implied from the dealings between the parties.
Power of attorney by trustee
The powers of a trustee to delegate his powers through a power of attorney or otherwise are limited. As a general rule, a trustee is not empowered to delegate his authority further. By virtue of Section 47 of the Indian Trust Act, the trustees get limited powers to delegate further, in case the trust deed so provides, or if the delegation is in the regular course of business or delegation is necessary, or if the beneficiary gives his consent for the same. It is to be noted that the Indian Trusts Act provides for delegation of purely ministerial acts, which do not involve the exercise of any discretion.
Power of attorney given for registration of documents
The registration of the Power of Attorney is made compulsory in some states for transfer of immovable properties. When it is to be registered it should be presented at the sub registrar’s office with jurisdiction over the immovable property referred to in the document.
Where a person is unable to appear before the registering authority to present the document for registration, he can execute a power of attorney authorising a third person to do so on his behalf. As per Section 33 of the Registration Act, only the following powers of attorney are recognised.
If the principal, at the time of executing the power of attorney, resides in any part of India in which the Act is for the time being in force, a power of attorney executed before and authenticated by the registrar or sub-registrar, within whose district or sub-district the principal resides If the principal, at the time aforesaid, resides in any part of India in which the Act is not in force, a power of attorney executed before and authenticated by any magistrate If the principal, at the time aforesaid, does not reside in any part of India, a power of attorney executed before and authenticated by a notary or any court, judge, magistrate, Indian counsel or vice-counsel, or representative of the central government.
Precautions relating to the power of attorney
Before accepting the power of attorney, it should be ensured that it is adequately stamped, duly executed and attested. If a power of attorney has been executed in a foreign country, the signatures of the notary or judge before whom it is executed are required to be legalised by an accredited representative of the Indian embassy in that country. It may be noted that a power of attorney executed in a foreign country need not be stamped at the time of execution, however, it is to be stamped adequately within three months from the date of its receipt in India.
Notarisation of Power of Attorney
Section 85 of the Indian Evidence Act applies to the power of attorney authenticated by a notary. A court will presume that every document purporting to be a power of attorney, that has 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, is properly executed and is a conclusive proof. Each page of a document notarised should bear the official stamp of the notary disclosing his registration number and jurisdiction, and also his signature. Appropriate notary stamp has to be affixed.
Merely because the power of attorney is not duly notarised does not mean that the agent was not authorised to act on behalf of the principal. Notarisation of the power of attorney is a matter of procedure and raises the presumption of the authority of the person to act on behalf of principal. In other words, it does not mean that power of attorney executed in favour of a particular person but not duly notarised does not confer power upon the person.
Revocation of Power of Attorney
A power of attorney executed in favour of an agent recording or recognizing an interest of the Agent/Attorney in the property which is the subject-matter of the Agency, cannot be revoked or terminated, even if the instrument does not state specifically that it is irrevocable, as then it would be a power coupled with an interest. But a power of attorney simplicitor which merely authorised an agent to do certain acts in the name of or on behalf of the executant can be revoked at any time in spite of the instrument stating that the Power of Attorney is irrevocable.