LEGAL CHAT
What an NRI has to do in executing a PoA
R.L. NARAYANAN
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Here is an FAQ clearing lingering doubts on executing a Power of Attorney
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What an NRI has to do on PoA. - Photo:Vipin Chandran
You or your close relative may be staying abroad. A property is to be purchased by you or the said other person. Most people are aware that in such circumstances , a Power of Attorney needs to be executed. However, many doubts arise on this matter. In fact, this is one of the most discussed topics. Hence, I am sharing the relevant issues in the form of an FAQ for simple and easy understanding.
What is a Power of Attorney?
Simply stated, a Power of Attorney is an authorisation. It gives power or authority to a person, to act for another. The scope of power or authority is as contained in the deed.
Who are parties to the Power of Attorney?
The person who gives the power is known as the “Donor” or “Grantor” or “Principal”. The person in whose favour it is granted is known as the “Donee” or “Grantee” or “Agent” or “Attorney”.
Are there many types of Powers of Attorney?
Yes. The two major types are General Power of Attorney and Special Power of Attorney. A General Power of Attorney is used when the Agent is empowered to undertake many transactions on behalf of the Principal. A Specific Power of Attorney is granted when the Agent is to undertake specific transactions.
I have given a person, a Power of Attorney. Can I revoke this?
Normally you can. If you have not created an interest for the Agent in the transaction concerned, mostly, this can be revoked.
I am living abroad. I want to appoint my Father or Mother or a relative as Agent. Can this be done?
Yes. You can execute a Power of Attorney and send it to the Agent, in India. The Agent can Adjudicate this Power of Attorney, within three months after receipt in India.
What is this adjudication?
This is a method of paying proper stamp duty for the Power of Attorney. This is a simple process. The stamp duty payable for a Power of Attorney varies from State to State in India. It is also determined on the basis of contents of the deed.
What is the process for due execution, abroad?
You have to sign this before a Consulate Officer or a Notary in the Country of your residence. Your signature in the deed has to be attested by the Consulate Officer or Notary.
Are there any precautions?
Yes. Make sure that you sign every page. Most of these deeds are signed only in the last page. This is not accepted, generally, in India. At times, the date on the document and the date of attestation differ. This is never accepted. Always send a covering letter or note with a date on it. This will help in computation of time of three months for adjudication.
Does the grant of Power of Attorney, result in immediate transfer of property?
No. However, read the document carefully. You may knowingly or otherwise create an interest for the Agent in the transaction contemplated.
Can I grant the Power for Gift or Settlement?
Yes. Please make sure that it is not granted to the Donee or Settlee who receives the Gift or Settlement.
I want to make a Will in respect of my assets in India. Can I grant a Power of Attorney for this?
No. An Agent cannot make a Will for you.
I was in India for a brief time. I just signed a document brought in by a trusted person without reading it. Now, I am disturbed. However, I feel delicate to call for a copy. What should I do?
In my view, not asking for details or calling for the copy may be a greater mistake. Please do it at the earliest. A straight request is almost always understood.
I have given a Power of Attorney to a person in India. I have not received any feedback. The person is not contactable. I am feeling uncomfortable. What do I do?
You must act quickly. If you have the details of property in respect of which the Power of Attorney has been given, it is possible in most cases to check locally, whether any transaction has been effected.
I have not retained certain copies or records because of certain valid reasons. How do I protect my interests in India?
In my view, this attitude is risky. Please take suitable advice on this.
Suppose the Agent expires. What happens to the Power of Attorney?
Normally, the Power of Attorney will lapse. However, all the acts already done legally by the Agent will be binding on you.
I have properties in many States in India. I want to give separate Powers of Attorney in respect of each item. Is this possible?
Yes. You can execute as many Powers of Attorney as you desire.
I want to grant a Joint Power of Attorney. Is this possible?
Yes. You can empower two or more persons jointly or severally to act on your behalf.
What are the implications of a Power of Attorney?
The acts of the Agent would be normally binding on you. If a mortgage is made in your name, there could be a personal liability, which may extend beyond the value of property in question. If the acts of the Agent violate Acts such as Foreign Exchange Management Act, you may be personally liable. Therefore, make sure that the document is clear and you understand the implications.
The author is partner, RANK Associates, Advocates, Chennai.
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