WILL AND POWER OF ATTORNEY : A STUDY OF LAW AND

FORMAT
NATURE AND SCOPE OF WILL
"Will" as such does not find mention among the documents in use among Hindus in ancient
times apart from the Sanskrit term "Maran Shashnam" which however, does not express the
exact idea of a "will". The Hindu texts make no references to "wills" and this is natural since the
normal state of Hindu society in ancient times was the joint-family and on the death of a member
the property in which he had an interest passed by survivorship to the other member of the
family. It was only after partition, and the acquisition of self-acquired property, became common
that the necessity to make wills arose, and testamentary powers among Hindu have been based
on long usage and judicial decision. A testament is an institution or appointment of an heir or
executor made according to formalities prescribed by law.

In the absence of a statute, a will may be in any form, oral or in writing. Before the Indian
succession Act became applicable to Hindus, oral wills by Hindus were recognized as Valid. An
oral will could also be implied; if in writing it need not be signed or attested. But to operate as
will, the writing must be complete and operative.

Will is translation of the Latin voluntas, which was a term used in the texts of Roman law to
express the intention of a testator. It is curious that the abstract term has come to mean the
document in which the intention is contained.

The word 'testament' is derived from testatio menties; it testifies the determination of the mind.
A will is thus defined by Ulpain's as "the legal declaration of a man's intentions, which he wills
to be performed after his death."

"A will is an instrument by which a person makes a disposition of his property to take effect after
his decease and which is in its own nature ambulatory and revocable during his life."3 This
ambulatory character of a will has been often pointed out as its prominent characteristic,
distinguishing it in fact, from ordinary dispositions by a living person's deed, which might indeed
postpone the beneficial possession of even a vesting until the death of the disposer and yet would
produce such postponement only by its express terms under an irrevocable instrument and a
statement that a will in final does not import an agreement not to change it.

"A will is the aggregate of man's testamentary intentions so far as they are manifested in writing
duly executed according to the statue.4

In Lord Penzance in Leimage v. Goodban, Mr. Jarman points out that in a "general and
comprehensive sense "A will consists of the aggregate of all the papers through which it is
dispersed.''
In this sense it includes codicils. The essential characteristic of a will is that it is a mere
declaration of an intention so long as the testator is alive, a declaration that may be revoked or
varied according to the variation in his intention a disposition that requires the testator's death,
for its consummation and it is but ambulatory or without fixed effect until the happening of that
event.

MEANING OF WILL :
Will is a legal declaration of the intention of a testator with respect to his property, which he
desires to be carried into effect after his death. It includes codicils and every writing making a
voluntary posthumous disposition of property. It is a testamentary instrument by which a person
makes disposition of his property, to take effect after his death, and which in its own nature, is
ambulatory and revocable during his life. Thus, a will can be changed by the executants as and
when he so likes. It is a secret and confidential document which the executants is never ordered
to produce.

"Will means the legal declaration of the intention of a testator with respect to his property which
he desires to be carried into effect after his death".

In view of this definition the will must contain the following three Characteristics.

1. It should be "the legal declaration" of the intention of the testator.

2. The declaration must be "with respect to the property of the testator.

3. The testator should "desire the intention to be carried into effect after his death".

There must be a disposition of property under the document. Where a document called 'will' by a
Hindu testator only gave his wife authority to adopt, without giving her anything else in his
properties, the character of a will is not established. There must a disposition of property.

The intention of the testator must be expressed in clear words in order that the same right be
given effect to.

There must be express words of bequest. However, it might be that a testator inadvertently omits
to express his intention to make a gift, but there may be recitals showing that the testator is under
the impression that he has made a disposition in evidence of an intention. In such cases, if the
court is satisfied that there has been a mistake in carrying out the testator's intention, the court
may give effect to such intention if the other provisions of the will, will allow this to be done.
Origin of Will :
The origin of wills in India is shrouded in obscurity and its investigation is rendered all the more
difficult as there is no text at all dealing with the subject expressly. This may be due to the fact
that by the Hindu law property if not previously distributed in his lifetime had been left to
descend, on the death of its owners, to his heirs. The orthodox Hindu contemplated the claims of
his children and dependants as indefeasible and they in turn reversed as laws the authority and
wishes of his ancestors. Hence the scarcity of wills in ancient times.

But it cannot be said that wills were wholly unknown to Hindu law. Gifts were undoubtedly very
common and, as in other countries, the conception of a gift gave rise to the conception of a will.

In the words of Lord Cockburn, CJ. :

'The instincts and affection of mankind, is the vast majority of instances, will lead man to make
provisions for those who as man's nearest relatives, would be entitled to share the fortunes he
leaves behind, some may be better provided for than others, some from age, or sex or physical
infirmity may stand in a greater need of assistance. Friendship and tried attachment of faithful
service, may have claims that ought not to be disregarded. In the power of rewarding dutiful and
meritorious conduct, Paternal authority finds a useful auxiliary; age secures the respect and
attention which are one of its chief consolation, circumstances, such as these exist in every
country and so in India. Consequently such an orthodox Hindu might have contemplated the
claims of his children and dependants on indefeasible, it was natural to expect him to have
expressed his wishes touching these points to his heirs on his death bed, desiring the same to be
carried into effect after his death.

Indeed, there are texts of Hindus sages which contain the actual germs of a will and which were
capable of being developed into a complete testamentary system.

Katyayana Says "What a man has promised in health or in sickness, for a religious purpose.
Must be given; and should be die without giving it, his son shall doubtless be compelled to
deliver it."

Katyayana also says: "After delivery of what is due as friendly gift (promised by the father) let
the remainder be divided among the heirs.

Harita Says: "A promise made in words but not performed in deed is a debt of conscience both
in this world and the next".

Texts of Vrihaspati in Datta Pradhaimka in Smriti Chandrika says: "A man may give what
remains after the food and clothing of the family".
Texts of Narada Says: "What exceeds the maintenance of the family may be given away."

Texts of Yagna Valkya says: A gift made without prejudice to the family is valid."

According to Colebrooke: Testament was unknown to Hindu Law. The Sanskrit expression
sankalpa is explained by Jagannatha as the nearest term for a will. The word Marona Sadana
which may be translated as the last will and testament if after all a modern expression.In
vallinayagam Pillai v. Pachche, the word is stated to be 'Marana Sadanan'.

Thus any attempt to spin out a clear conception of testamentary disposition from the ancient texts
is not likely to bear good results.

Growth of Will :
"Such Promises being treated as gifts would be enforced against the heir in exactly same manner
as an ordinary secular debt. At first they would be treated as a moral obligation, and then by
analogy, as a legal obligation. It is significant that the principle seems first to have been applied
in favour of pious gifts. But it would rapidly extend to all disposition of property, to the extent of
a man's power of disposing of it. In case of separate and self-acquired property the same would
naturally be admitted with little hesitation. It would afterwards be applied to the undivided share
of a co-heirs, or to ancertral property in the hands of a fathers or sole co-heirs. In each province
the rapidity and extent of the growth of the testamentary power would depend upto the degree to
which the control of the testator over his property was admitted."

So it may be said "that what is effect, thought not in form are testamentary instruments which are
only to come into operation and effect property after the death of the maker of the instrument"
were not unknown to Hindu laws," though in the ancient Hindu law, as it was understood
throughout the whole of Hindustan, testamentary instruments in the sense affixed by Hindu
lawyers might be unknown." It remains now to consider the gradual growth of this testamentary
power among Hindus. As might be expected the rapidity of the growth was not the same in all
provinces and consequently it is necessary to consider the same separately.

Bengal : Of all provinces in India it was in Bengal that wills were most popular in ancient India
and therefore, it was in Bengal that the testamentary power of a Hindu was first recognized and
settled. The first important judicial pronouncement was in 1772 in what is Popularly known as
the Nuddea's Case wherein the will of the testator the Rajah of Nuddea, bequeathing the entire
Zamindari in favour of his eldest son, to the exclusion of his three other sons, was held to be
perfectly valid according to Hindu law of course, maintenance was decreed to the excluded sons.

The right of a Hindu, governed by the Dayabhaga law, to bequeath ancestral property,
immoveable and moveable, to the exclusion of the son, was affirmatively laid down in 1800 and
1808 in Gopee v. Rajakrishna and in Rantoonoo v. Ramgopal. A contrary view was however,
taken in 1816 in Bhowannv Churn v. Heris of Ramkant. That was a case of unequal partition
that had been made by the father. The pandits found that it was bad as a partition, on account of
the unequal division of ancestral property, and that it was equally bad, as a gift, as there had been
no delivery of possession.

WHAT IS POWER OF ATTORNEY & HOW TO GET IT – TYPES

A power of attorney, often abbreviated as POA, is a document allowing capable adults to name
someone to serve as their representative, or allow others to enter into agreements on their behalf.
Because the future is never certain, and an unexpected emergency that robs you of your ability to
make choices can happen at any time, this legal tool is something every adult – no matter age,
circumstances, or needs – should utilize.

As legal documents, all powers of attorney must meet state-specific legal standards to be
effective. Though these standards differ slightly between states, they generally require that you
make your power of attorney in writing, name who you want to serve as your representative,
name the powers you want your representative to have, and sign the document.

Otherwise, you are free to customize your POA to suit your needs or wishes. That said, you
should consult a lawyer to ensure you follow state law when creating a POA, and that it
accurately reflects your wishes.

Understanding Powers of Attorney

Power of Attorney Abilities
Because they are so flexible, powers of attorney are among the most useful legal documents you
can create. Are you in the military and need to make sure your spouse can manage your finances
while you are deployed? Do you want to buy or sell property but cannot (or do not wish to)
appear in person to make the transaction? Are you worried about what might happen to you or
your family should you land in the hospital? Are you a parent who wants to take a vacation and
leave your children under the care of grandparents while you are gone?

You can use powers of attorney to address all of these concerns and more. Through a power of
attorney, you (the principal) can give others (your agents) the legal authority to make decisions
for you or represent your interests.

The Principal
People who create a power of attorney are known as principals. You can be a principal as long as
you meet two basic requirements: You are an adult, and you are of sound mind.

The adult requirement is typically easy to meet, but the sound mind requirement can be
problematic. To be of sound mind you must be able to understand your choices, as well as
understand the consequences of making any particular choice. Many adults are of sound mind for
most of their lives, and some never lose mental capacity. But others (such as people with
significant cognitive disabilities or those who suffer from medical conditions that affect their
cognitive abilities) either never have the requisite capacity or lose it.

Regardless of the cause, if a person is determined not of sound mind by a court of law (even long
after the original drafting of the document), that person cannot become a principal and cannot
create a power of attorney document (or the existing document is not a valid POA).

The Agent/Attorney-in-Fact
The representatives you choose to make decisions on your behalf are known as “agents,” or
“attorneys-in-fact.” Like principals, agents have to be capable adults, and must be willing to take
on the role as your representative. An agent can also be an organization, such as a law firm or a
bank.

Agents, Attorneys-in-Fact, and Lawyers

One of the most confusing aspects of a power of attorney is the terminology surrounding it.
When many people hear the phrase “power of attorney,” they naturally assume that it has
something to do with lawyers. Similarly, the term “attorney-in-fact” sounds as though it involves
a lawyer, or perhaps requires you to hire an attorney to serve as your agent.

In general, when you create a power of attorney, neither you nor your chosen agent has to be a
lawyer or have any legal training or background. A power of attorney is a document, nothing
more, and the term “attorney” in such context simply means “representative.”

As a legal document, a power of attorney is subject to specific laws, requirements, and legal
interpretations. Therefore, to create an effective power of attorney, you may need to consult an
experienced lawyer to ensure that it both complies with laws and meets your needs. While you
are under no legal obligation to hire an attorney to create your POA, a poorly drafted document
may be disregarded, creating more problems than it solves.

Power of Attorney Use and Registration

In general, you are not required to register or file a power of attorney with a government office in
order for it to be effective. For example, if you create a limited power of attorney to give your
agent the ability to pay your bills while you are on vacation, you don’t need to deliver the
document to a local courthouse or other government facility. The POA document is effective as
long as it complies with relevant state laws.

A key exception to this requirement is when you authorize your agent to buy or sell real estate on
your behalf. States typically require that you have to register any power of attorney authorizing
an agent to transfer real property, and must typically do so with the county government office
(such as a county recorder’s office or register of deeds) where the property being transferred is
located.

Types of Wills :
Privileged and Unprivileged Wills

Any soldier being employed is an expedition or engaged is an expedition or engaged in actual

warfare or an airman so employed or engaged or any mariner being at sea, may, if he has
completed the age of 18 years, dispose of his property by a will made in the manner provided in
sec 68 of Indian succession Act, such wills are called Privileged Wills.

• Privileged wills may be in writing or may be made by word of mouth. Execution of privileged
wills shall be governed by the following rules:-

a. The will may be written wholly by the testator, with his own hand, in such cases it need not be
signed or attested.

b. It may be written wholly or in Part by another person; and signed by the testator. In such cases
it need not be attested.

c. If the instrument purporting to be a will is written wholly or in part by another person and is
not signed by the testator, It shall be deemed to be his will, if it is shown that it was written by
the testator's directions or that he recognized it as his will.

d. If it appears on the face of the instrument that the execution of it in the manner intended by the
testator was not completed, the instrument shall not, by reason of that circumstances, be invalid,
provided that his non-execution of it can be reasonably ascribed to some cause other than the
abandonment of the testamentary intention expressed in the instruments.

e. If the soldiers, airman or mariner has written instruction for the preparation of his will, but has
died before, it could be prepared and executed, such instructions shall be considered to constitute
his will.

f. If the soldier, airman or mariner has, in the presence of two witnesses given verbal instructions
for the preparation of his will and they have been reduced into writing in his lifetime but he has
died before the instrument could be prepared and executed, such instruction shall be considered
to constitute his will, although they may not have been reduced into writing in his presence, nor
read over to him.

g. The soldier, airman or mariner may make a will by words of mouth by declaring his intention
before two witnesses present at the same time. A will made by word of mouth shall be null and
void at the expiration of one month after the testator, being still alive, has ceased to be entitled to
make privileged will.
The will exerted by a person, although enlisted and undergoing training a weak before he was
actually sent overseas, cannot be accepted as privileged will.

Wills executed according to the provisions of section 63 of the Indian Succession Act are called
unprivileged Wills. Every testator, not being a soldier employed in an expedition or engaged in
actual warfare or an airman so employed or engaged or an mariner at sea, shall execute his will
according to the following rules :

i. The testator shall sign or shall affix his mark to the will, or it shall be signed by some other
person in his presence and by his direction.

ii. The signature or mark of the testator or the signature of the person signing for him shall be so
placed that it shall appear that it was intended thereby to give effect to the writing as a will.

iii. The will shall be attested by two or more witnesses, each of whom has seen the testator sign
or affix his mark to the will or has seen some other person signing the will, in the presence and
by the direction of the testator, or has received from the testator a personal.

Conditional or contingent wills

A will may be expressed to take effect only in the event of the happening of some contingency or
condition, and if the contingency does not happen or the condition fails, the will is not to be
legally enforceable. The leading case on this subject is the Spratt.

In that case the testator wrote a will as follows : "being obliged to join my regiment in china, I
leave this paper containing my wishes. Should anything unfortunate happen to me whilst abroad,
I wish everything that I may be is possession of at that time, or anything appertaining hereafter,
to be divided."

The English court of probate held that the said will was a conditional will and could come into
operation only on the testator dying while absent from England.

Joint Wills

A joint will is a testamentary instrument whereby two or more persons agree to make a conjoint
will where a will is joint and is intended to take effect after the death of both, it will not be
enforceable during the life time of either . Joint wills are revocable at anytime by either of
testators during their joint lives, or after the death of one, by the survivor.

Joint wills are recognized in India also. The validity of joint will, has been recognized in
Meenakshi Anmol v. Vishvanatha Iyer.
In the case of a joint will, it is valid will in so far as each is, in so far as his property is concerned
and can be probated as such as if it is the will of the one that is dead .

Mutual Wills

A will is mutual when two testators confer upon each other reciprocal benefits by either of them
constituting the other his legatee. But when the legatees are distinct from the testators, there can
be no position for mutual wills.

Oral Wills

In view of Sec 57(C), Indian succession Act, 1925, no oral will can be legally made own by
Hindus. 14 At present, even wills by Hindus must be in writing, signed and attested by two
witnesses. Still there is the mohomedon community among whom oral will is recognized.15
Again the privileged wills by soldiers etc. may be oral a simple declaration before witnesses.

An oral will however must be proved by very satisfactory evidence.

Sham Wills

If a document is deliberately executed with all due formalities purporting to be a will, it will still
be nullity if it can be shown that the testator did not intend it to have any testamentary operation,
but was to have only some collateral object. One thing must be borne in mind that the intention
to make the will is essential for the validity of a will.

Holograph Wills

A holograph will is entirely in the handwriting of the testator. Naturally there is a greater
guarantee of genuineness attached to such a will. But in order to be valid it must also satisfy all
the statutory requirements.

Duplicate Wills

The general rule is that a man can leave only one will at the time of his death. But for the sake of
convenience a testator may dispose of some proportion e.g. Those in one country, by one will
and those is another country by another will. They may be treated as wholly independent of each
others, unless there is any inter-connection or the incorporation of the one in the other.

Likewise a testator for the sake of safety, may make a will in duplicate, the one can be kept by
him and the other deposited in some safe custody with a bank or executor or trustee. Each copy
must be duly signed and attested in order to be valid. A valid revocation of the original would
effect a valid revocation of duplicate also.
IMPORTANCE OF WILL
If one does not make a will then his property will be inherited by legal heirs in accordance with
the laws of inheritance applicable to him. However, most of the people would like to dispose of
their property according to their own wishes. Thus, their arises the need for making one's will.
Apart from it there are certain distinct advantages of making a will.

Firstly, when a person dies without having made a will, there is often confusion amongst the
family members and relatives as to whether the deceased did make any will prior to his death or
not, but if a will is available, the only question that needs to be ascertained is whether it is the
last will of the testator.

Secondly, a will is absolutely personal document. More than anything, it is an expression of the
relationship with the family member or relatives etc. the views, opinions and feelings etc. are
indicated in this document. A will allows the devolution of property in a personalized manner
rather than letting the impersonal rules of inheritance to take effect.

Thirdly, many disputes can be resolved at the very outset if there is a clear disposition of one's
property in a will. It will not be out of place to mention the imbroglio of Late Mrs. Indira Gandhi
and her daughter-in-law Maneka Gandhi. Who were embroiled in a litigation concerning the
assets of the Late Sanjay Gandhi. Had Sanjay Gandhi left behind a will, the possibility of any
dispute surfacing between his mother and his wife would have been very remote.

Fourthly, by means of a will, one can appoint in writing, a testamentary guardian for his infant
children. A testamentary guardian is a person, who is appointed by a testament or a will. This
points needs further clarification. In the event of the death of a parent, the law would ordinarily
uphold the right of surviving natural parent to be the guardian of the child. However, if there is
no surviving parent, the law attaches great importance to the will of a parent in deciding to whom
to appoint as a guardian. This is a matter of great importance with regard to the future of the
children and, therefore the issue must be discussed in detail with the proposed guardian before
appointing him testamentary guardian.

Fifthly, a will provides more room viz-a-viz the laws of inheritance, which sometime do not
cater to the special needs and requirement of the members of a family. For instance, a father has
2 sons. One is healthy but other is handicapped due to any chronic disease since childhood. The
laws of inheritance would treat both these children on an equal footing. But by means of a will
one can have somewhat greater provisions for a handicapped son, a windowed daughter, or an
invalid parent. Not only that, by means of a will one can make some provision for a faithful
servant, a nurse, a friend in need of money and so on. All such people could never receive any
benefit whatsoever under the laws of inheritance in the absence of a will.

Sixthly, in the absence of a will, even the most unwanted son, who had left the house for
disobedience, fraud, violence, etc. may turn up to claim his share of estate from his fathers
property. Similarly an adulterous wife might demand her share as per inheritance laws.

If there is no will, the property would be dealt with as per the laws of inheritance. For Hindus,
Buddhists, Jains and Sikhs the law of inheritance have been codified in the Hindu succession
Act, 1956. For Christians, the Indian succession Act, 1925 will be applicable. Parsis have a
different law of inheritance. Similarly Muslims have their own law. That has, however, not been
codified in any legislation but is based on their religious texts.

Nature of the Will

'A will is ambulatory.’
A will has no effect at all, until the death of the testator. It is merely a declaration of his
intention, while testator is alive. It may be changed by him from time to time. For this reason it is
said to be ambulatory.It speaks from the death of the testator and is capable of disposing of all
property owned by him at his death, including property not owned by him at the date of the will
but acquired subsequently and it is in this sense that a will is said to be ambulatory.It would be
against the nature of a will to be so absolute that he who makes it cannot countermand it.

A will takes effect on the death of the executant and during his lifetime is an ambulatory
document, revocable at any time, having no effect whatever. It is a secret and confidential
document which the executants is never ordered to produce. In India, a will may be deposited
with the Registrar under the Indian Registration Act and the contents can remain secret until the
death of the executants. It is doubtful if any legal lights can be founde or supported on the will of
a living person.

Even the early ecclesiastical lawyers who has control of the will in England considered that a
will to be always and under all circumstances as revocable. They borrowed freely the principle of
Roman Law. As holds worth remarks many of those grounds are at present recognised by the
wills Act and the principles of Equity. Holds worth citing Swinburne refers as grounds for
revoking a will of the following.

1. A later will

2. A revocation of the will

3. Alteration of the state of mind of the testator;

hindering the testator from another will; circumstances connected with a legatee, such as his
death before the testator, and the like.

THE POWER OF ATTORNEY

'' Inasmuch as human being becomes busier, it becomes more necessary for him to depend on
others for getting his things done. Owing to this reason, the power of attorney is now playing
vital role.''

While the main concern of Indian philosophy is to analyse the fundamental concepts of ethics,
religion, epistemology and metaphysics, its ultimate concern is the social well-being of
individuals.

In the recent computer era, where commerce and industry assured large role to play , the need
for entering into contracts of agreements in relation to business and other transactions become a
common and primary feature of daily life. Because of human being became busier, it became
more necessary for him to depend on others for getting his things done. The hectic activities of
the businessmen and industrialists have made the execution of power of attorney for delegating
his functions. A "power of attorney" is a legal instrument whereby one person gives another
person the authority to act on his or her behalf as his legal representative, and to make binding
legal and financial decisions on your behalf.

Defining A Power Of Attorney

In Blacks dictionary it is described as the instrument by which a person is authorized to act as an
agent of the granting it. It is pertinent to mention here a person need not be a lawyer to hold a
Power of Attorney as an agent for someone else. In Strouds judicial dictionary "power of
attorney is defined extensively as an authority whereby one is set in the stead or place of another
to act for him".

Power of Attorney is a document of agency whereby the principal appoints an agent to do and
execute certain acts or deeds on his behalf. Various can be found in different enactments like
according to the Bombay Stamp Act it is defined as "any instrument empowering a person to act
for and in the name of the person executing it and includes an instrument by which a person a not
being a legal practitioner is authorized to appear on behalf of any party in proceedings before any
court tribunal or authority"

The Indian Stamps Act defines it "any instrument empowering any specified person to act for
and in the name of the person executing it"
Despite there is a specific act pertaining to Power of attorney but it is a very precise and brief
one , the basic principles of these document are governed by the law of agency as provided for in
the Indian Contract Act. A power of attorney may be of two types-

1) General

2) Specific

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.

Construction of a power of attorney- There are two main rules in construing a power of attorney

.1) The operative part of the deed is controlled by the recitals wherever there is any ambiguity

2) Where authority is given to do particular acts followed by general words the general words are
restricted to what is necessary for the performance of the particular acts.

The Power of Attorney can be effective immediately upon signing or only upon disability.

Somme illustrations of legal aspects containing in the Power of Attorney:

Contracts, Agreements

1. To enter into contacts,

2. Perform any contract, agreement, writing, or thing

3. To make, sign, execute, and deliver, acknowledge any contract, agreement,

The Power Of Attorney In Real Estate Field

1. To sell, exchange, lease, collect rents, grant, bargain, or borrow and mortgage .

2. To execute all deeds, bonds, contracts, mortgages, notes, checks, drafts, money orders;

3. To manage, compromise, settle, and adjust all matters relating to real estate;
Bank Accounts, Certificates Of Deposit, Money Market Accounts

1. To add to or withdraw any amounts from any of my bank accounts, Certificates of Deposit,
Money Market Accounts, etc.

2. To make, execute, endorse, accept and deliver any and all cheques and drafts

3. Execute or release such deeds of trust or other security agreements as may be necessary

4. Deposit and withdraw fundsAcquire and redeem certificates of deposit, in banks, savings and
loan

Tax Returns, Insurance And Other Documents

1. To file, sign all tax returns, insurance forms and any other documents

2. To represent in all matters concerning the foregoing.

Stocks, Bonds, And Securities

1. To sell any and all shares of stocks, bonds, or other securities

2. To make, execute, and deliver any assignment, or assignments, of any such shares of stock,
bonds, or other securities.

KINDS OF POWER OF ATTORNEY

Every act performed by the agent within the authority of the Power of Attorney is legally
binding upon the persons granting it. A power of attorney must be given only to a trustworthy
person, and only when it is absolutely necessary. The person who empowers is the Principal and
the person to whom the power is conferred is the Agent.

There are two kinds of power of attorney viz., "General Power of Attorney" and "Special (or
limited) Power of Attorney" .

What is a General Power of Attorney ?

1. The principal empowers the agent with the right to carry out all legal acts on his behalf
without restricting it to a particular transaction or act,

2. Gives the agent very broad powers to act on behalf of the Principal
What is a Special Power of Attorney?:

1. The authority is restricted to act only on certain matters or only a particular kind of transaction
or to carry out a specific legal transaction for the Principal.

2. The agent's power of attorney expires on the completion of the transaction

The Basic Principles To Remember:

1. The general rule of power of attorney is that it should be strictly construed.

2. Unless an express power is conferred on an agent to enter into contracts of guarantees on

behalf of his principal or to execute or negotiate , negotiable instruments for his principal jointly
with others

3. An agent cannot by his acts bind the principal to a larger extent than he is empowered to do
under the power of attorney.

4. Fraud by the power agent does not bind the principal. He cannot be sued or otherwise held
responsible for fraud by the agent

5. If the power does not authorize the agent to carry on a business except with limitations any act
done by him in excess of such power will not bind the principal.

6. For example power to dispose of property does not confer a power to mortgage the property.

7. Power to manage immoveable property cannot permit principal's ornaments which are a
moveable proper .

Important Rules For Construction Of Power Of Attorney

1. The operative part of the deed is controlled by the recitals

2. Where authority is given to do a particular act, followed by general words, the general words
are restricted to do what is necessary for the proper performance of the particular acts.

3. General words do not confer general powers, but are limited to the purpose for which the
authority is given, and are construed as enlarging the special powers only when necessary for
that purpose

4. The deed must be construed so as to include all powers necessary for its execution.

Registration Of Power-Of-Attorney
1. Registration of power of attorney is not compulsory. it is optional
2. In India, where the Registration Act, 1908, is in force, the Power of Attorney should be
authenticated by a Sub Registrar only, (Whenever a person signs the document and his attorney
presents/ admits execution).

3. In other areas, attestation should be by a Notary or diplomatic agents

4. In case an attorney under a valid Power of Attorney himself signs a document, he may, as an
executing (signing) party present/admit execution of a document though it is attested by a
Notary, unless the text of the power specifically excludes such powers

5. Foreign Power of Attorney should be got stamped by the Collector after its receipt in India
within prescribed time of 3 months

6. Registration of power of attorney authenticates the deed of power of attorney

7. Power of Attorney shall be attested by two or more adult independent witnesses who are of
sound mind

8. If a power of attorney is in respect of an immovable property of value more than Rs100 it must
be registered.

What is a General Power of Attorney?

A general power of attorney gives broad powers to a person or organization (known as an agent
or attorney-in-fact) to act in your behalf. These powers include handling financial and business
transactions, buying life insurance, settling claims, operating business interests, making gifts, and
employing professional help. General power of attorney is an effective tool if you will be out of
the country and need someone to handle certain matters, or when you are physically or mentally
incapable of managing your affairs. A general power of attorney is often included in an estate
plan to make sure someone can handle financial matters.

What is a Special Power of Attorney?

You can specify exactly what powers an agent may exercise by signing a special power of
attorney. This is often used when one cannot handle certain affairs due to other commitments or
health reasons. Selling property (personal and real), managing real estate, collecting debts, and
handling business transactions are some of the common matters specified in a special power of
attorney document.

What is a Health Care Power of Attorney?

A health care power of attorney grants your agent authority to make medical decisions for you if
you are unconscious, mentally incompetent, or otherwise unable to make decisions on your own.
While not the same thing as a living will, many states allow you to include your preference about
being kept on life support. Some states will allow you to combine parts of the health care POA
and living will into an advanced health care directive.

What is a Durable Power of Attorney?

Suppose you become mentally incompetent due to illness or accident while you have a power of
attorney in effect. Will the document remain valid? To safeguard against any problems, you can
sign a durable power of attorney. This is simply a general, special, or health care POA that has a
durability provision to keep the current power of attorney in effect.

You might also sign a durable power of attorney to prepare for the possibility that you may
become mentally incompetent due to illness or injury. Specify in the power of attorney that it
cannot go into effect until a doctor certifies you as mentally incompetent. You may name a
specific doctor who you wish to determine your competency, or require that two licensed
physicians agree on your mental state.

What to look for when choosing your power of attorney?

Trust is a key factor when choosing an agent for your power of attorney. Whether the agent
selected is a friend, relative, organization, or attorney, you need someone who will look out for
your best interests, respect your wishes, and won't abuse the powers granted to him or her.

It is important for an agent to keep accurate records of all transactions done on your behalf and to
provide you with periodic updates to keep you informed. If you are unable to review updates
yourself, direct your agent to give an account to a third party.

As for legal liability, an agent is held responsible only for intentional misconduct, not for
unknowingly doing something wrong. This protection is included in power of attorney
documents to encourage people to accept agent responsibilities. Agents are not customarily
compensated; most do it for free.

Should you, a friend, or relative suspect wrongdoing on the part of your agent, report the
suspected abuse to a law enforcement agency and consult a lawyer.

Can you appoint multiple power of attorneys?

While you can appoint multiple agents, decide whether these agents must act jointly or
separately in making decisions. Multiple agents can ensure more sound decisions, acting as
checks and balances against one another. The downside is that multiple agents can disagree and
one person's schedule can potentially delay important transactions or signings of legal
documents.

If you appoint only one agent, have a backup. Agents can fall ill, be injured, or somehow be
unable to serve when the time comes. A successor agent takes over power of attorney duties
from the original agent, if needed.
Can your choice of Power of Attorney be questioned?

A power of attorney is valid only if you are mentally competent when you sign it and, in some
cases, incompetent when it goes into effect. If you think your mental capability may be
questioned, have a doctor verify it in writing. If your power of attorney doesn't specify
requirements for determining mental competency, your agent will still need a written doctor's
confirmation of your incompetence in order to do business on your behalf. A court may even be
required to decide the competency issue in some circumstances.

How to make your choice of a Power of Attorney legally binding?

You must sign and notarize the original power of attorney document, and certify several copies.
Banks and other businesses will not allow your agent to act on your behalf unless they receive a
certified copy of the power of attorney.

Attorneys are unnecessary to execute a power of attorney. However, it may be wise to consult
one for advice about the powers being granted, to provide counsel on your candidate agent, and
to make sure your document meets all legal requirements.

Remember, you can revoke a power of attorney at any time. Simply notify your agent in writing
and retreive all copies of your power of attorney. Notify any financial institutions and the County
Clerk's office, if applicable, that your agent's power of attorney has been revoked.

Needing a power of attorney is almost as certain as death and taxes in everyone's life. Illness,
injury, old age, or daily life commitments happen to everyone. It is important to understand what
a power of attorney is and how it can assist in taking care of business, even when you can't.

Attorney-in-fact
The term attorney-in-fact is used in many jurisdictions instead of the term agent.[2] That term
should be distinguished from the term attorney-at-law. In the United States, an attorney-at-law is
a solicitor who is also licensed to be an advocate in a particular jurisdiction. An attorney-in-fact
may be a layperson and is authorized to act pursuant to the powers granted by a power of
attorney but may not engage in acts that would constitute the unauthorized practice of law.

In the context of the unincorporated reciprocal inter-insurance exchange (URIE) the attorney-in-
fact is a stakeholder/trustee who takes custody of the subscriber funds placed on deposit with
him, and then uses those funds to pay insurance claims. When all the claims are paid, the
attorney-in-fact then returns the leftover funds to the subscribers.

The Uniform Power of Attorney Act employs the term agent. As an agent, an attorney-in-fact is a
fiduciary for the principal, so the law requires an attorney-in-fact to be completely honest with
and loyal to the principal in their dealings with each other.
Care must be taken when selecting an attorney-in-fact, as some attorneys-in-fact have used their
authority to steal the assets of vulnerable individuals such as the elderly (see elder abuse).

Structure and requirements

Capacity of the grantor

Capacity (law)

The person who creates a power of attorney, known as the grantor, can only do so when he/she
has the requisite mental capacity. If the grantor loses the capacity to grant permission after the
power of attorney has been created (for example, from Alzheimer's disease or a head injury in a
car crash); then the power will probably no longer be effective.[citation needed] In some powers
of attorney the grantor states that he/she wishes the document to remain in effect even after
he/she becomes incapacitated. This type of power is commonly referred to as a durable power of
attorney. If someone is already incapacitated, it is not possible for that person to execute a valid
power, although in some jurisdictions, it may be possible for someone to have the capacity to
execute a power of attorney even if they do not have the capacity to make the decisions that they
are delegating. If a person does not have the capacity to execute a power of attorney (and does
not already have a durable power in place), often the only way for another party to act on their
behalf is to have a court impose a conservatorship or a guardianship.

Oral and written

Depending on the jurisdiction, a power of attorney may be oral and, whether witnessed, will hold
up in court, the same as if it were in writing. For some purposes, the law requires a power of
attorney to be in writing. Many institutions, such as hospitals, banks and, in the United States,
the Internal Revenue Service, require a power of attorney to be in writing before they will honor
it, and they will usually keep a duplicate original or a copy for their records. Nursing homes
often follow the same practice.

Equal dignity rule

The equal dignity rule is a principle of law that requires an authorization for someone performing
certain acts for another person to have been appointed with the same formality as required for the
act the representative is going to perform. This means, for example, that if a principal authorizes
someone to sell the principal's house or other real property, and the law requires a contract for
the sale of real property to be in writing (which is required under the Statute of Frauds in most
U.S. jurisdictions), then the authorization for the other person to sign the sales contract and deed
must be in writing too. Likewise, in common-law jurisdictions other than the U.S., a power of an
attorney to execute a deed (i.e. instrument under seal or executed in presence of two witnesses)
must be itself executed as a deed.

Execution
For a power of attorney to become a legally enforceable document, at a minimum it must be
signed and dated by the principal.Some jurisdictions also require that a power of attorney be
witnessed, notarized, or both. Even when not required, having the document reviewed and signed
(and often stamped) by a notary public may increase the likelihood of withstanding a legal
challenge.

If the attorney-in-fact is being paid to act on behalf of the principal, a contract for payment may
be separate from the document granting power of attorney. If that separate contract is in writing,
as a separate document it may be kept private between the principal and agent even when the
power of attorney is presented to others for the purposes of carrying out the agent's duties.

Types

A power of attorney may be: special (also called limited), general, or temporary. A special power
of attorney is one that is limited to a specified act or type of act. A general power of attorney is
one that allows the agent to make all personal and business decisions.A temporary power of
attorney is one with a limited time frame. If ever required, a durable power of attorney can be
revoked or changed as long as the principal is still mentally competent to act.

Durable

Under the common law, a power of attorney becomes ineffective if its grantor dies or becomes
"incapacitated," meaning unable to grant such a power, because of physical injury or mental
illness, for example, unless the grantor (or principal) specifies that the power of attorney will
continue to be effective even if the grantor becomes incapacitated. This type of power of attorney
is called "power of attorney with durable provisions" in the United States or "enduring power of
attorney", "lasting" or "continuing" power of attorney elsewhere. In effect, under a durable
power of attorney, the authority of the attorney-in-fact to act and/or make decisions on behalf of
the grantor continues until the grantor's death.

Health care

In some jurisdictions, a durable power of attorney can also be a "health care power of attorney."
This particular affidavit gives the attorney-in-fact the authority to make health-care decisions for
the grantor, up to and including terminating care and life support. The grantor can typically
modify or restrict the powers of the agent to make end-of-life decisions. In many jurisdictions a
health care power of attorney is also referred to as a "health care proxy" and, as such, the two
terms are sometimes used interchangeably.

Relationship with advance health care directive

Related to the health care power of attorney is a separate document known as an advance health
care directive, also called a "living will". A living will is a written statement of a person's health
care and medical wishes but does not appoint another person to make health care decisions.
Depending upon the jurisdiction, a health care power of attorney may or may not appear with an
advance health care directive in a single, physical document. For example, the California
legislature has adopted a standard power of attorney for health care and advance health care
directive form that meets all of that state's legal wording requirements for a power of attorney
and advance health care directive in a single document. Compare this to New York State, which
enacted a Health Care Proxy law that requires a separate document be prepared appointing one
as your health care agent.

Revocation Of Power Of Attorney

Power of Attorney can be revoked in the following cases,in case of :

1. Revoked by the principal himself

2. The principal dies or becomes insane or becomes bankrupt

3. The business for which the agent was appointed is over

4. Mutually agreed upon by the principal and agent

5. The right under the power of attorney is renounced by the agent

Power of Attorney Types

When you create a power of attorney you choose between a variety of types and options.
Different types of POA are better suited for some purposes than others, and using multiple
POAs, each for a different purpose, is common.

There are several ways to differentiate between the different types of power of attorney, such as
the scope of the power given, what kinds of powers an agent has, when they take effect, and
when they terminate.

How Much Authority Are You Giving Your Agent?

The power of attorney you create gives your agent specific decision-making rights. There are
two basic types of powers you can assign:

• General. A general power of attorney is the broadest type available. When you create a general
power of attorney you grant your agent the ability to make all of the decisions you can make.
General powers of attorney are best used in situations where you need someone else to take care
of all your affairs for you, such as when you are traveling and need your financial and personal
affairs managed at home, or in the event you become incapacitated and need someone to protect
your interests when you cannot.
• Limited. Any power of attorney that does not grant your agent general powers is a limited
power of attorney. A limited power of attorney, also called a “special POA,” can be limited to a
single type of decision (such as granting a real estate agent the right to sell your home), or it can
include numerous specific powers. Limited POAs can also limit when your agent can make
decisions. As a principal, you can limit your agent’s decision-making abilities as much or as little
as you like.

Can Your Agent Act After You’ve Been Incapacitated?

Beyond limited and general POAs, you can also differentiate between POAs based on whether
your agent can continue to act on your behalf after you lose mental capacity.

• Durable. A durable POA means that your agent can continue to represent you if you become
incapacitated or lose the ability to make your own choices. You cannot revoke a durable POA
while you are incapacitated.

• Non-durable. Non-durable powers terminate once you lose capacity. For example, if you give
your real estate agent the right to sell your house through a non-durable power of attorney, your
agent will go out and try to find a buyer. However, if you are involved in a car accident and
become comatose, your agent’s ability to sell your house is terminated.

When Does the POA Take Effect?

How soon can your agent begin acting on your behalf when you create a POA? Regardless of
whether the POA is limited, general, or durable, the document must state when the agent’s
authority takes effect.

There are two ways to designate when the POA takes effect:

• Immediate/Standing. Sometimes you want your agent to begin acting for you as soon as
possible. Immediate powers of attorney, also known as standing powers, take effect as soon as
you create them.

• Springing. A springing power of attorney only takes effect if certain conditions are met. For
example, you might create a springing durable power of attorney for finances that only takes
effect if you become incapacitated. As long as you remain capable, your agent has no power to
make financial decisions for you or manage your financial affairs. But, should you lose capacity,
the springing power of attorney gives your agent the ability to step in and take over managing
your financial affairs.

What Kinds of Decisions Can Your Agent Make?

Your POA states the specific kinds of decisions your agent is allowed to make for you. Though
you have discretion in determining which powers you grant, POAs typically come in one of
several key types:
• Financial. A POA for finances gives your agent the ability to manage some or all of your
financial affairs. For example, POAs for finances can give an agent the right to use the money in
your checking account, buy and sell stock on your behalf, or file or pay your taxes.

• Healthcare. A POA for healthcare – also known as a healthcare proxy or advance directive –
gives your agent the right to make medical decisions for you. Powers of attorney for healthcare
are typically durable powers, as they are designed to allow your agent to talk to your doctors and
make medical decisions for you when you’re incapacitated.

• Childcare. A POA for childcare gives your agent the right to make parental or guardianship
decisions on your behalf. For example, if you are taking a vacation and want to leave your
children in the care of their grandparents, you can use a POA for childcare to give the
grandparents the right to make parenting choices, such as educational or emergency medical
decisions, while you are gone.

Power of Attorney Risks

Even though powers of attorney are useful, flexible, and powerful legal tools, many people are
reluctant to create them. After all, if you give an agent the ability to make decisions for you or
use your property and money, you’re giving that person a great amount of control and influence
over your life.

What if something goes wrong? What if your agent is unscrupulous? These concerns are not
insignificant, and you need to be aware of the potential risks – and protections against those risks
– before you create a POA.

The Principal-Agent Relationship

One of the major concerns people have when they think about creating a POA is the possibility
that their agents will take advantage of them. After all, if your agent misuses his or her authority
(or simply fails to act appropriately), your interests could suffer serious harm. Though there are
occasions when agents under a POA abuse their position, they are less common than most people
believe, and the concern that such a misuse of authority could happen to you should not stop you
from creating a power of attorney of your own.

When you create a power of attorney and choose an agent, you create a principal-agent
relationship that imposes on the agent a heightened legal obligation, known as a fiduciary duty.
Under the fiduciary duty, your agent has a responsibility to act to protect your interests. For
example, if you grant your agent the ability to manage your finances, pay your bills, or take care
of your property while you are incapacitated, the agent cannot simply start using your property in
any way he or she wants – the agent must act responsibly to protect you.
If you name an agent who in turn violates fiduciary duty, he or she can be held personally liable
for any damages or harm that result – meaning, you can sue the agent (and in extreme situations,
the state may charge the agent with a crime).

If you are incapable of suing the agent, someone else, such as a friend or relative, can go to court
to request that the agent be stripped of his or her authority so that another agent can be appointed
to protect you. Such a person can even sue the agent on your behalf. Not only that, but in some
extreme situations where an agent abuses authority and violates fiduciary duty, the state can
charge the agent with a crime.

When Powers of Attorney Terminate

All powers of attorney come to an end, but they can do so in different ways. The termination of
an agent’s authority under a power of attorney sometimes happens by choice, and sometimes
because of specific circumstances.

Termination by Principal’s Choice

When you create a power of attorney, you retain the ability to terminate your agent’s authority at
any time as long as you remain mentally capable. The terms in the power of attorney document
spell out what you have to do to fire your agent, but communicating your decision through
writing is common. Verbally terminating an agent is also often suitable, as long as you follow up
with written notice.

Furthermore, many principal-agent relationships, such as those between a home buyer and a real
estate agent, are based on contractual agreements. Such contracts typically place limits on your
ability to terminate the agent’s authority.

Termination by Agent’s Choice

Agents can also end the power of attorney relationship, but are usually not as free to do so as
principals. When an agent decides to withdraw or quit, the agent has a duty to do so in a way that
does not harm the principal’s interests, because the agent is still a fiduciary.

So, if you are an agent, you must notify the appropriate people when you decide to withdraw.
This typically requires that you notify the principal of your intent to withdraw, and may also
require that you notify any successor agent of your withdrawal so the successor can take over
your duties. If the principal is incapacitated and has a guardian or caregiver, you will have to
notify that person as well of any successor agent.

Termination by Time
Some powers of attorney have a time limit. For example, if you hire a real estate agent to find a
home for you, you agree to allow the agent to be your sole representative for a period of time –
six months is common. If the six months go by and the agent fails to find the home, the agent’s
authority to represent you terminates automatically.

Termination by Achievement

A power of attorney can terminate because the purpose for its existence have been achieved.
Using the real estate agent example, if your agent finds a home for you a month after you enter
into the agreement, the agent’s powers terminate because he or she has satisfied the purpose of
the agreement.

Termination by Principal’s Incapacitation

When a principal names an agent under a non-durable power of attorney, the principal’s
incapacitation results in the termination of the agent’s authority.

An agent is generally allowed to continue to act on your behalf in a non-durable agreement until
he or she learns of your incapacitation. After learning that you have been incapacitated, the agent
can no longer make choices for you. However, if you created a durable power of attorney, your
agent can continue to represent you.

Termination by Principal’s Death

When the principal dies, the agent’s authority to represent the principal automatically comes to
an end. Like with incapacitation in the case of non-durable power of attorney, agents can still
represent you until they learn of your death. If you want someone to manage your estate’s
finances after you’ve died, you must make a last will and testament that names an executor, or
create a revocable living trust that names a successor trustee.

Termination of a Power of Attorney :

(a) Generally speaking, a power of attorney can be terminated or cancelled by the principal by
revoking his authority or by the power of attorney holder renouncing his authority.

(b) According to S. 201 of the Contract Act, an agency can be terminated by the principal by
revoking his authority or by the agent renouncing his authority, unless such revocation is
prohibited under S. 202 of the Contract Act (quoted herein-below). S. 201 of the Contract Act
also states that an agency terminates, inter alia, by death of principal or agent.

(c) Now, the questions that arise are whether a power of attorney can be irrevocable in nature,
and, whether an irrevocable power of attorney granted would terminate on death of a donor ? In
such an event, would the security holder under a power of attorney, cease to hold such security in
the event the donor dies. When does a power of attorney become irrevocable ?

Revocation Of General Power Of Attorney

According to the Judicial perception, under the following circumstances, the power of attorney
can be revoked.

If the power given to the attorney is coupled with an interest it is irrevocable.

To decide whether a given power is coupled with interest or not regards are to be given to the
facts of each case and the wordings of the instrument itself.

The right of an agent to remuneration though stipulated in the form of property to be produced
by exercise of power is not an interest in the required sense.

If the power is irrevocable as per the test laid down the parties are nevertheless free to make it
revocable by an express stipulation to the contrary.

If the power is revocable than the parties cannot make it irrevocable merely by writing that the
instrument is irrevocable.

The position in our country is the same as that in England.

A power of attorney is automatically terminated if- One of the parties to the instrument dies or
becomes insane, The principal becomes insolvent or bankrupt, any specific condition in the
instrument is breached, the business comes to an end.

"Courts refer to Indian Contract Act provisions to determine this question.

LEGAL PROVISIONS :
(1) The POA Act does not state when a power of attorney is irrevocable. However, in various
commercial transactions, a donor gives an irrevocable power of attorney, on contractual basis, to
secure the interest of the donee of the power.

(2) Under S. 4 of the (English) Powers of Attorney Act, 1971 a power of attorney is
irrevocable if it is expressed to be so and is given to secure :

(i) a proprietary interest of the donee of the power; or

(ii) the performance of an obligation owed to the donee. Then, so long as the donee has the
interest or the obligation remaining undischarged, the power cannot be revoked by the donor
without the consent of the donee, or by death, incapacity, insolvency, winding up or dissolution
of the donor.

Introduction
In the world of business and industry, contracts of agreements play an important role. It became
necessary for the businessman to depend on others for getting his things done. The execution of
power of attorney is the one who delegates the business functions. The power of attorney is a
legal process which is granted to the person to act as legal representative of the businessman. A
principal will authorize an agent as the attorney to avoid any inconvenience of any legal
proceedings.

Power of Attorney: A Mode of Creation of Agency

Chapter X of the Contract Act 1872 governs agency. An ‘Agent’ is someone employed to do any
act for another or to represent another in dealings with third person/s. The person for whom such
act is done, or who is so represented, is called the ‘Principal’.”

The authority of an Agent may be expressed or implied. An express authority, in turn, could be
given by words spoken or written. An implied authority is inferred from the circumstances of the
case.

A “power of attorney” is a mode of creating an express agency. It is a written instrument

executed by a Principal to appoint an Agent to act for the Principal in one or more transactions.
“Power-of-attorney” includes any instruments empowering a specified person to act for and in
the name of the person executing it.

Is It Necessary to Notarize a Power of Attorney?

There is no specific mode prescribed for the execution of power-of-attorney. Yet it is not
uncommon to notarize the execution of power of attorney. An aspect of notarization is governed
by provisions of Notaries Act, 1952. Under the said Act a notary is appointed by Central or State
Government to do specified acts inter alia to verify, authenticate, certify or attest the execution of
any instrument.

Under the provisions of Indian Evidence Act, a power of attorney executed before and
authenticated by a Notary Public carries a presumption that it was properly executed.

Section 85 of the Indian Evidence Act reads:

“85. Presumption as to powers-of-attorney.—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.”
In Kamla Rani and Ors. vs. Texmaco Ltd. MANU/DE/7343/2007, the High Court of Delhi
explained the effect of notarization as follows:

“Authentication by a notary public is a solemn act performed by the notary public whose duty is
to ensure that the executant is the person before him and is identified to his satisfaction. Once a
document is authenticated by a notary public, it will be presumed that the document was duly
executed and was in order. The use of the expression ‘shall presume’ shows that the section is
mandatory and the court has to presume that all necessary requirements for the proper execution
of the power of attorney were duly fulfilled before the notary public. As observed in AIR 1984
363 E.C. & E. Co. Ltd. v. J.E. Works, if 2 conditions are satisfied, firstly the power of attorney
being executed before a notary public and secondly it being authenticated by a notary public, a
presumption would arise under Section 85 about the executant of the power of attorney. Onus
would thus lie on the opposite party to prove to the contrary. It is well settled that authentication
would mean more than mere execution. Where proof of authentication surfaces, the benefit of
Section 85 has to be granted.”

While a power of attorney executed before and authenticated by a Notary carries a presumption
as to its due execution, the absence of such authentication would not render the document
invalid. Explaining this aspect, the Delhi High Court in Grafitek International Versus K.K.
Kaura & Ors. 2002 SCC OnLine Del 3 held as under:

“Merely because the power of attorney is not duly notarized does not mean that the concerned
person was not authorized to institute the suit. Notarization raises the presumption as to its
authentication and no more. Notarization of power of attorney is a matter of procedure and raises
the presumption of the authority of the person to institute the suit. In other words, it does not
mean that power of attorney executed in favour of a particular person but not duly notarized does
not confer power upon the person to institute the suit.”

Keeping in view the benefit of presumption as to its due execution, it is advisable to notarize the
power of attorneys.

Power of Attorney Executed Abroad

Section 14 of the Notaries Act, 1952 empowers the Central Government to declare that notarial
act lawfully done by Notaries in other countries shall be recognized for specified purposes.
Pursuant to power under said Section 14 Central Government has notified only three countries
namely Belgium, New Zealand and Ireland.

Calcutta High Court in a recent decision took a view that notification under Section 14 of the
Notaries Act is not mandatory and Section 85 of the Evidence Act applies to documents
authenticated by the notary public of other countries. The contrary view was taken by High Court
of Kerala.
In absence of uniformity of view amongst the High Courts, in order to seek the benefit of section
85 of Evidence Act, it is advisable that power of attorney executed outside India, should to be
authenticated by Indian Consul, Vice-Consul or representative of the Central Government in that
country and not by any Notary Public.

Need to Authenticate Power of Attorney to be Used for Presenting a Document for Registration

In case the document to be registered under the Registration Act 1908, it is possible to present
the same for registration either through the person executing such document or through an Agent
of the executrix duly authorized by power-of-attorney executed and authenticated in the manner
specified in section 33 of the Registration Act.

Section 33 of Registration Act provides:

“(1) For the purposes of section 32, the following powers-of-attorney shall alone be recognized,
namely:-

(a) if the principal at the time of executing the power-of-attorney resides in any part of 18[India]
in which this 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;

(b) if the principal at the time aforesaid resides in any part of India in which this Act is not in
force, a power-of-attorney executed before and authenticated by any Magistrate;

(c) if the principal at the time aforesaid does not reside in India, a power-of-attorney executed
before and authenticated by Notary Public, or any court, Judge, Magistrate, Indian Consul or
vice-consul, or representative of the Central Government:

Provided that the following persons shall not be required to attend at any registration-office or
court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and
(b) of this section, namely-

(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so
to attend;

(ii) persons who are in jail under civil or criminal process; and

(iii) persons exempt by law from personal appearance in court.”

No Need for Authentication of Power of Attorney when Agent Himself id the Executrix

The provisions of Section 33 of Registration Act, 1908 requiring the Power of attorney to be
used by an Agent to present a document for registration to be authenticated, are not applicable in
all cases where presentation is by an Agent. The requirement of authentication applies only
where the person presenting a document is the Agent/attorney of the person executing it, and not
where it is presented for registration by the actual executrix, even though such executrix may
have executed it as an Agent for the Principal. Here the decision of Supreme Court in Rajni
Tandon v. Dulal Ranjan Ghosh Dastidar, (2009) 14 SCC 782 is relevant wherein it was held:

“Where a deed is executed by an agent for a principal and the same agent signs, appears and
presents the deed or admits execution before the registering officer that is not a case of
presentation under Section 32(c) of the Act. As mentioned earlier the provisions of Section 33
will come into play only in cases where presentation is in terms of Section 32(c) of the Act. In
other words, only in cases where the person(s) signing the document cannot present the
document before the registering officer and gives a power of attorney to another to present the
document that the provisions of Section 33 get attracted. It is only in such a case, that the said
power of attorney has to be necessarily executed and authenticated in the manner provided under
Section 33(1)(a) of the Act.”

Registration of Power of Attorney

• Registration of all power of attorney is not compulsory.

• Only in certain states in case the power-of-attorney relates to transfer of immovable property
possession whereof has been or is handed over to the attorney holder or where Irrevocable power
of attorney relating to the transfer of immovable property is made, that the deed of power of
attorney is required to be registered.

• The registration of all other power of attorneys is optional. Yet a registered document carries
with it a presumption that it was validly executed. Consequently, it is for the party questioning
the genuineness of the transaction to show that transaction was invalid.

• Therefore, to preempt any possible attack that power of attorney was not duly executed, it can
always be registered.

Payment of Stamp Duty

A Power of Attorney is chargeable under section 48 of Schedule I of the ‘Indian Stamp Act,
1899’. The Stamp Act as applicable in different States prescribe the stamp duty payable on
different types of power of attorney. Non-payment of prescribed stamp duty may entail the
following consequences:

1. The power of attorney would be inadmissible in evidence before any authority capable of
receiving evidence or before any public authority.

2. The document can also be impounded for enforcing the payment of full stamp value.

3. An unstamped or under the stamped power of attorney can be admitted in evidence only if
penal stamp duty 10 times the value of the original amount is paid.
To sum up notarization and registration of power of attorney though not essential in all cases, to
effectively meet any challenge as to due execution thereof, it is better to get the same notarized.
In case substantial rights are derived under/through power of attorney, the same could even be
registered. In cases where authority is conferred on an Agent to present a document executed by
Principal for registration, its authentication by registering authority is essential. Payment of
appropriate stamp duty is invariably be ensured.

The original view was again upheld in 1821 in Ranj Krishno v Taraneychurn and in 1829 in
Kunela v. Gooroo and finally in 1831 in Juggomohan v Neemoo.

In 1843, in Baboo Kanokey Dass v. Bindobun Dass their lordship of the privy council affirmed
the will of a Hindu of Bengal of date 10th January, 1828. Executors were known by that time
seeing that the testator had appointed his brother-in-law as his executor (vassee). The matter
must be taken to have been finally set at rest in 1856, when in Nagulakshini v. Gapoo
Naderaja, their lordships of the privy council held that, "throughout Bengal a man who is
absolute owner of property may now dispose off it by will as he pleases whether it be ancestral
or not. This point was resolved several years ago by the concurrence of all judicial authorities in
Calcutta, as well as of supreme as of the sudder court. "The same view has been affirmed by a
number of decisions38 of the privy council ranging from 1846 to 1872.

Madras : In southern Indian also the competency to make a will depended upon the competency
to make a gift. It was invalid if it was to the detriment of male descendents.

Considering a will of 1811 of the zamindar of Nozeed their lordship of the privy council
followed the opinion of the law pandits which had been given to the effect that the Dharma
Sastras empowered, "that a man may give what remains after a sufficient property is retained for
the suitable maintenance of the family, such as food, raiment, etc and observed:

'Therefore the ancestral landed estates and other properties of the ancestral landed estates and
other properties of the person mentioned in the question, who is destitute of male heirs, be
sufficient for the suitable maintenance of his wife and family, he is competent, without the
consent of his wife, to alienate in perpetuity to one of his nearest male relations, a village which
he had acquired by purchase at Public auction."

Madras Regulation V of 1892 (Hindu Wills) recited that wills were instruments unknown and
enacted that from that time Hindu wills should have no force whatever, except so far as they
were in conformity with Hindu Law act to authorities prevalent in Madras Presidency. Thus wills
were set aside where they were prejudicial to the male issue, 41 so also where a man without
male issue willed away all his property without leaving anything to his wife and daughters it was
held to be illegal and void unless they had asserted to it.

In Nagulukshmi v. Nadaraja, the question about the competency of a Hindu in the Madras
Presidency to make a will was finally settled. In that case a Hindu without male issue or
Kinsman or coparcener, after providing for the maintenance of his widow, daughters and female
relations devised ancestral as well as other real and personal estate to trustees upon certain
charitable trusts. Repelling the contention that the testator had no right to make a will and that
the same was not recognizable under the provisions of Reg V of 1829, the sudder dewany
Adawlut at Madras upheld the will.

In affirming this decision in appeal44 their lordships of the privy council, observed that a person
in Madras could make a will of property not ancestral and observed that "If, then the will does
not affect ancestral property, it must be, not because an owner of property by the Madras law
cannot make a will, but because by some peculiarity of ancestral property, it is withdrawn from
the testamentary power. "The sudder Adawlut Madras held in Dec. Mad. Udalat Madras Vol. I
Pg. 27, that a will devising ancestral estate is a nullity and of no force. Finally in valinayagam v.
pachche the High court at Madras after a consideration of the conflicting decisions of the sudder
court and all the previous decisions, recognized the power of a testator, who has no male issue, to
make a binding will bequeathing the bulk of his property to a distant relation after providing
sufficient maintenance for his widow. It must be taken that this decision sets at rest all doubts
regarding the competency of Hindu in Madras to make a valid null.

Bombay : The early case law of Bombay, however disclose that wills were not recognized the
power to make will was not co-existent with the power to make a gift. Sir Thomas strange
records the opinion of a Pandit attached to the Bombay court given in 1734 to the effect: "There
is no mention of will & in our shastras: therefore they ought not to be made. If it be said that it is
lawful for a father to divide his property during life, that is true; but then it must be done
agreeably to the shastras. Thus where a man devised properly to the prejudice of his widow and
daughter the will was held by Pandits to be invalid even though he provided maintenance, on the
ground that the will was contrary to the shastras which declared that the wife was heir. So also a
will by which one of two sister's sons was given property excluding the third sister and the
second son of the second sister, was held to be ineffective.This was the state of law by 1820.
Later there must have been a slow but steady revolution in favour of recognition of wills for in
1866, in Narottan v. Narasandas westroop, J observed:

"In the supreme court the wills of Hindus have always been recognized and also in the High
Court, at the original side. Whatever questions there may formerly have been as to the right of
Hindu to make a will relating to his property in the moffussil areas to the recognition of the will
by the Hindu Law, there can be no doubt that testamentary writings are, as returns made within
last few years from the zillas show, made in all parts of the moffussil of his presidency but as
might have been expected much more frequently in some districts than in others and this court at
its appellate side, has on several occasions recognized and acted on such documents."
Other States : So then the result is that whatever a man could dispose of by gifts in his lifetime
and in respect of property over which he had complete control he could dispose off by will in
Calcutta, Madras and Bombay Presidencies. So also in North western province 48 in Malabar in
Canara under Aliasantana law in mysore and in the Punjab.

Persons Competent to Make a Will

According to section 59 of the Indian Succession Act.

• Any person of sound mind

• Who has reached the age of majority The following persons cannot make a will :

• Lunatics, insane persons.

• Minors i.e. below 18 years of age. In case a guardian is appointed to a minor, such minor
reaches the age of maturity only at the age of 21 years.

• Persons who are deaf or dumb or blind are not, thereby, incapacitated in making a will, if they
are able to know what they do by it.

• A person, who is ordinarily insane, may make a will during an interval while he is of sound
mind.

• No person can make a will whilst he is in such a state of mind, whether arising from
intoxication or from illness or from any other cause, so that he does not know what he is doing.

Executor of a Will :

The executor is the most important person in the will. 'Executor' is defined in the Indian
succession Act, 1925 as a person to whom the execution of the last will of a deceased Person, is
by the testator's appointment confined. An executor is charged with the duty and conferred with
the power to carry out the directions contained in the will. He has to collect and realise the estate
of the deceased, pay his debts and distribute the legacies. The executor shall file the petition for
obtaining probate of the will. The court shall file the petition for obtaining probate of the will.
The court shall grant probate only to an executor who has been named in the will.

Codicil :

Codicil can be defined as a supplement to a will. It is the most important aspect of the will. The
testator is allowed to make alterations in the will and the process is known as codicil. The Indian
succession Act, 1925, says codicil is an instrument made in relation to a will and explaining,
altering or adding to its dispositions and shall be deemed to form part of the will. And therefore,
a codicil is executed and attested in the same way as that of a will. Alkrations or additions are
deemed to be the part of the will. A Codicil may or may not be a separate document as it can be
endorsed on the original will itself.

Letter of Administration

• A certificate granted by the competent court to an administrator

• Where there exists a Will authorizing him to administer the estate of the deceased in
accordance with the WILL. where a WILL does not name any executor loan application can be
filed in the court for grant of Letter of Administration for the pro

• And in accordance with law where the deceased has died intestate.

A Probate

•Probate means other copy of the will is given to the executor together with a certificate granted
under the seal of the court and signed, by one of the registrars, certifying that the will has
been proved

• The application for probate shall be made by petition to the court of competent jurisdiction.

• A copy of the last will and testament of the deceased should be annexed to the petition.

• The copy of the will and the copy of the grant of administration of the testator’s estate together,

• It is conclusive evidence of the validity and due execution of the will and of the testamentary

• A probate is obtained to authenticate the validity of the will.

• The probate is still the only proper evidence of the executor’s appointment.

• The grant of probate to the executor does not confer upon him any title to the property which
the did belong to the testator and over which he had a disposing power with a grant of
administration

• Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the Dist.
conferred with exclusive jurisdiction to grant probate of a Will of the deceased.

A Succession Certificate :

• Succession Certificate can be granted by the Court to realize the debts and securities of the
decease

• A succession certificate is a certificate when granted to the person empowers the person to
receive interest or dividends negotiate the transfer or any of them with respect to the securities of
a deceased person P.S.: Securities means any bond, stock, debenture or security He is required to
dispose of the amount so realised in accordance with the rights of the person.The person
requiring the Succession Certificate may .File an application in the court, where the properties of
your deceased relative are situated .Depending on the value of the estate of the deceased, the
matter shall go to the type

[This is known as “pecuniary jurisdiction” of the court].With the names of all other heirs of your
late relative as the respondents in the matter. Who may after notice to all concerned and a
newspaper notice is also issued apart from upon the expiry of the time period (normally 1 and a
half months) from the date of publicatic their no objection. The court passes the orders for
issuance of the Succession Certificate to the person/s making judicial Stamp papers of sufficient
amount (as per the prescribed court fees structure) to be sub typed by the court staff, duly signed
and sealed and delivered.The certificate takes about 3-4 months from date of filing to receive
your certificate.

Will & Nomination :

• A nomination is not a will.

• The nominee merely acts as the trustee. In some instances, the nominee and the beneficiary of
the

• At all times, the provisions of the will prevail over the nomination.

• It is advisable to have the same person as the nominee and the beneficiary of the will, so as to

A nomination, in order to be effective, need not be executed as a will but must be in accordance
with the applicable.

Attestation of A Will :

•The testator shall sign or shall affix his mark to the will, or some other person shall sign it in his

• The signature or mark of the testator, or the signature of the person signing shall appear

cleared manner that is appropriate and makes the will legal.The will shall be attested by two or
more witnesses, each of whom has seen the testator sign or a sign the will, in the presence and by
the direction of the testator, or has received from the testator.

• Personal acknowledgement of his signature or mark, or of the signature of such other person. I
presence of the testator.

• Each of the witnesses shall sign the will in the presence of the testator, but it should not be the
same time, and no particular form of attestation shall be necessary.

Execution of A Will :
• On the death of the testator, an executor of the will or an heir of the deceased testator can apply

• The court will ask the other heirs of the deceased if they have any objections to the will.

• If there are no objections, the court will grant probate.

• A probate is a copy of a will, certified by the court. A probate is to be treated as conclusive

evident

• In case any objections are raised by any of the heirs, a citation has to be served, calling upon
then

• This has to be displayed prominently in the court.

• Thereafter, if no objection is received, the probate wit? be granted.

• It is only after this that the will comes into effect.

Drafting a will

Any person declaring his will is called a Testator. Basically it is a means of legally defining, who
will inherit the property after his death.

Basic concepts of a will:

• It is extremely easy to make a will

• You do not need a lawyer to draft a will

• Language can be simple, but intention has to be clear in writing

• It must be signed by atleast 2 witnesses.

• Will does not have to be registered, but it is good if you can register

• You can change your will at any time

• You can revoke your will at any time, with/ without making a fresh will, but must be done in a
proper way with signature of testator

• A supplement to the will (called ‘codicil’) can be made, but has to be also signed by 2
witnesses.

Some technical terms

• If a person dies without making a will, he is said to have died ‘intestate’, in which case Indian
Succession law 1925, will apply based on your religion.

• Probate is granted by a court, certifying the validity of the will. Obtaining a probate is
compulsory to execute the will of the testator

First step

This would be to make in inventory of one’s assets such as:

• Bank investments (saving account, current account, fixed deposits receipts, recurring deposit
accounts)

• Financial Investments (stocks, debentures, bonds, mutual funds, Post office investments like
India Vikas Patra, National saving schemes, etc)

• Property

• Personal assets (jewellery, cars, art collections etc)

• Insurance (life insurance policies, retirement benefits)

• Intellectual Property Rights

Then make a list of liabilities what you have to pay such as:

• Mortgages

• Loans

Subtracting these liabilities from the total of your assets shows your net worth.

Second step

Please read about the importance of nominees, before drafting a will.

Since the will is an extremely personal document, the next step is to make a list of all the
beneficiaries, after due thought. Also, make a decision on who should be the Executor. After the
testator passes away, it is the responsibility of the Executor to obtain the probate from the court
and distribute the estate as per the wishes of the testator as per the will.

Drafting the actual will requires you to use very specific and clear language. For example, even
if property is jointly owned, be specific and say that survivor will become the sole owner after
me.
Of the 2 witnesses, you may choose your doctor and a lawyer and video record the signing of the
will. Some people chose to have a psychiatrist as a witness. Store the will in a safe place, which
can be easily obtained after your passing away.

International
In some U.S. states and other jurisdictions, it is possible to grant a springing power of attorney;
i.e., a power that takes effect only after the incapacity of the grantor or some other definite future
act or circumstance. After such incapacitation the power is identical to a durable power, but
cannot be invoked before the incapacity. This power may be used to allow a spouse or family
member to manage the grantor's affairs in case illness or injury makes the grantor unable to act.
If a springing power is used, the grantor should specify exactly how and when the power springs
into effect. As the result of privacy legislation in the U.S., medical doctors will often not reveal
information relating to capacity of the principal unless the power of attorney specifically
authorizes them to do so.

Determining whether the principal is "disabled" enough to initiate this type of representation is a
formal process. Springing powers of attorney are not automatic, and institutions may refuse to
work with the attorney-in-fact. Disputes are then resolved in court.

Unless the power of attorney has been made irrevocable by its own terms or by some legal
principle, the grantor may revoke the power of attorney by telling the attorney-in-fact it is
revoked. However, if the principal does not inform third parties and it is reasonable for the third
parties to rely upon the power of attorney being in force, the principal might still be bound by the
acts of the agent, though the agent may also be liable for such unauthorized acts.

Standardized forms

Standardized forms are available for various kinds of powers of attorney, and many
organizations provide them for their clients, customers, patients, employees, or members.
However, the grantor should exercise caution when using a standardized POA form obtained
from a source other than a lawyer because there is considerable variation in approved formats
among the states. In some jursidictions statutory power of attorney forms are available.

Health care

In some jurisdictions, a durable power of attorney can also be a "health care power of attorney."
This particular affidavit gives the attorney-in-fact the authority to make health-care decisions for
the grantor, up to and including terminating care and life support. The grantor can typically
modify or restrict the powers of the agent to make end-of-life decisions. In many jurisdictions a
health care power of attorney is also referred to as a "health care proxy" and, as such, the two
terms are sometimes used interchangeably.
Relationship with advance health care directive

Related to the health care power of attorney is a separate document known as an advance health
care directive, also called a "living will". A living will is a written statement of a person's health
care and medical wishes but does not appoint another person to make health care decisions.
Depending upon the jurisdiction, a health care power of attorney may or may not appear with an
advance health care directive in a single, physical document.

For example, the California legislature has adopted a standard power of attorney for health care
and advance health care directive form that meets all of that state's legal wording requirements
for a power of attorney and advance health care directive in a single document.Compare this to
New York State, which enacted a Health Care Proxy law that requires a separate document be
prepared appointing one as your health care agent.

Springing

In some U.S. states and other jurisdictions, it is possible to grant a springing power of attorney;
i.e., a power that takes effect only after the incapacity of the grantor or some other definite future
act or circumstance. After such incapacitation the power is identical to a durable power, but
cannot be invoked before the incapacity. This power may be used to allow a spouse or family
member to manage the grantor's affairs in case illness or injury makes the grantor unable to act.If
a springing power is used, the grantor should specify exactly how and when the power springs
into effect. As the result of privacy legislation in the U.S., medical doctors will often not reveal
information relating to capacity of the principal unless the power of attorney specifically
authorizes them to do so.

Determining whether the principal is "disabled" enough to initiate this type of representation is a
formal process. Springing powers of attorney are not automatic, and institutions may refuse to
work with the attorney-in-fact. Disputes are then resolved in court.

Unless the power of attorney has been made irrevocable by its own terms or by some legal
principle, the grantor may revoke the power of attorney by telling the attorney-in-fact it is
revoked. However, if the principal does not inform third parties and it is reasonable for the third
parties to rely upon the power of attorney being in force, the principal might still be bound by the
acts of the agent, though the agent may also be liable for such unauthorized acts.

Standardized forms

Standardized forms are available for various kinds of powers of attorney, and many
organizations provide them for their clients, customers, patients, employees, or members.
However, the grantor should exercise caution when using a standardized POA form obtained
from a source other than a lawyer because there is considerable variation in approved formats
among the states. In some jursidictions statutory power of attorney forms are available.
Implied limitations on agent's power

Although a power of attorney grants the agent powers to perform acts in the absence of the
grantor, the POA cannot grant powers to the agent that conflict with rules and regulations
governing people and companies that the agent deals with. For example, if a bank has regulations
that require the grantor to be physically present in the bank to perform certain actions, the POA
cannot grant the agent power to perform those actions in the absence of the grantor.

Specialized uses

Proxy voting

Robert's Rules of Order notes that proxy voting involves granting a power of attorney. The term
"proxy" refers to both the power of attorney itself and the person to whom it is granted.

Finance

In financial situations wherein a principal requests a securities broker to perform extensive

investment functions on the principal's behalf, independent of the principal's advice, power of
attorney must be formally granted to the broker to trade in the principal's account. This rule also
applies to principals who instruct their brokers to perform certain specific trades and principals
who trust their brokers to perform certain trades in the principal's best interest.

Legal status by country

Australia

In Australia, anyone with capacity can grant a power of attorney. This can be done either for a
pre-defined period of time, or in perpetuity ("enduring"). The power of attorney can be granted to
one individual, or to multiple individuals. When granted to multiple individuals, they may be
authorised either to act jointly (all together) or to act severally (each can act individually).

England and Wales

In English and Welsh law, anyone with capacity can grant a power of attorney. These can be
general (i.e., to do anything which can legally be done by an attorney), or relate to a specific act
(e.g., to sell freehold property). A power of attorney is only valid while the donor has the
capacity to ratify the attorney's actions, unless it is made in the form of a lasting power of
attorney and registered with the Office of the Public Guardian.[citation needed] This new form
of power of attorney was introduced in 2007 under the Mental Capacity Act 2005 and replaced
the former enduring power of attorney, although EPAs correctly made before the law changed
are still valid. EPAs only need to be registered if the donor has since lost capacity.
The Office of the Public Guardian provides an online process for registering power of attorney.

Many of the provisions in the earlier paragraphs above use terminology different from either
common UK usage or terms used in the Mental Capacity Act 2005. Examples are enduring
power of attorney, advance directive, and notary public.

Republic of Ireland

In Irish law there are two forms of power of attorney:

• Power of attorney, which may be general or specific, which ceases once the donor becomes
incapacitated.

• Enduring power of attorney, which takes effect once the donor is incapacitated.

The death of the donor ends both.

The relevant legislation is the Powers of Attorney Act 1996 and the Enduring Powers of
Attorney Regulations 1996 (SI No. 196/1996) as amended by SI No. 287/1996.Part 7 of the
Assisted Decision-Making (Capacity) Act 2015 provides for new arrangements for those who
wish to make an Enduring Power of Attorney and once the 2015 act is commenced, no new
powers of attorney will be created under the 1996 act.

Creating powers of attorney

A solicitor is not necessary when creating Power of Attorney - it can be created when signed by
the donor in the presence of a witness.

Creating an Enduring Power of Attorney requires the following:

• it must be in a particular format.

• a statement from a doctor stating that the doctor thought the donor had the mental capacity to
understand the effect of creating the power of attorney when the document was executed.

• a statement from the donor to say that they understood the effect of creating the power.

• a statement from a solicitor to say they are satisfied that the donor understood the effect of
creating the power of attorney.

• a statement from a solicitor to say the donor was not acting under undue influence.

The courts play a general supervisory role in the implementation of the power.
Russia

Under Russian law, specifically art. 185 of the Russian Civil Code, a power of attorney may be
executed under hand or in notarial form. The power of attorney to act must be notarially
executed. Notarial execution is required for any power of attorney made for concluding a
contract subject to special public recordation, namely those dealing with interests in immovable
property.

A power of attorney, pursuant to art. 186 of the Russian Civil Code, must also be dated. Any
POA without an express date of execution is void.

Predstavitelstvo, Doverennost (in Russian)

A power of attorney cannot be irrevocable. The grantor may terminate the POA at any time at his
or her sole discretion. Any waiver of this right is void, as provided by the Civil Code.

Scotland

The Office of the Public Guardian in Scotland offers the e-Attorney Electronic Power of
Attorney (EPOAR) system for the submission and payment of powers of attorney registrations.
POA AND YOUR RIGHTS
Another common concern many people have about powers of attorney is the idea of losing or
transferring your decision-making rights. If you create a power of attorney and give your agent
decision-making authority, it does not take away your rights to make your own choices – as long
as you are a mentally capable person, you retain your decision-making rights, even if you create
a POA. You can change your mind, fire the agent, or instruct the agent on how to act as long as
you remain mentally competent.

While you can delegate your decision-making abilities to your agent, delegating is not the same
as relegating or relinquishing. Only a court can take away your decision-making abilities. To do
so, the court must determine that you are no longer capable of making choices on your own. If
the court makes that determination, it will appoint someone else (a guardian, conservator, or
both) to make decisions for you. After that, if you want to regain your decision-making rights,
you’ll have to ask the court to find that you are once again capable.

Power of Attorney Limitations

Generally, you can give your agent the ability to make any decisions you could make. However,
there are some decisions your agent is never authorized to make, even if you create a general
power of attorney that gives your agent as much decision-making authority as legally possible.

Marriage and Divorce

Your agent cannot choose a spouse for you, nor can the agent have your marriage annulled or file
for your divorce. However, in some situations, your agent can act in your place if you want to get
married but cannot physically be present at the ceremony. These types of marriages are known as
“proxy weddings,” or “marriage by proxy.”

Proxy marriages are only allowed in a small number of states, including California, Colorado,
Texas, and Wyoming, and can come with significant restrictions. For example, California only
allows proxy marriages when one spouse is a member of the armed forces, is stationed overseas
during a time of conflict or war, and is unable to physically attend the marriage ceremony
because of the deployment. In such a case, the would-be spouse can use a power of attorney to
get married, and the agent named in the POA can serve as the stand-in and agree to enter into the
marriage on behalf of the principal.

Elections

When you create a power of attorney, you cannot delegate your voting rights to your agent. Even
if you give your agent all your decision-making abilities, your agent cannot vote for you in any
political election in which you are eligible to vote. However, if you are a corporate shareholder
or own stock in a company, you can authorize your agent to vote in any shareholder or corporate
elections on your behalf.

Wills

Your agents cannot create, modify, revoke, or amend your last will and testament. However, if
you are not physically capable of making a will, but retain your cognitive abilities, you can direct
an agent to draft a will at your direction, and can even have the agent physically sign the
document on your behalf.

Hot Powers

In some states, agents are prevented from making specific types of decisions unless the power of
attorney document explicitly allows them to do so. These are sometimes known as “hot” powers,
and must be specifically addressed in the power of attorney.

For example, in Colorado, your agent under a power of attorney is not allowed to revoke,
modify, or create a trust on your behalf unless you explicitly provide this power. Other hot
powers can include the right to make gifts of your property, the right to select a beneficiary for
any transfer-on-death asset, and the ability to delegate the agent’s authority under the POA to
another agent.

Other Powers

When it comes to what agents are not allowed to do, some issues are less clear than others. For
example, federal bankruptcy courts are split on whether they allow agents to file bankruptcy
petitions for their principals. If you ever have a question about what your agent is or is not
allowed to do, talk to a lawyer.

OTHER POA ISSUES

Beyond the questions of choosing an agent, deciding which powers to grant your agent, and
ensuring that your POA complies with state laws, there are other issues you should be aware of
(again, talking to a lawyer is essential).
Successor Agents and Co-agents

Powers of attorney commonly include the name of one or more people as successor agents, and
less commonly as co-agents. While these terms may sound similar, there are significant
differences between the two types.

• Successor Agents. A successor agent is someone who takes over as agent if and when the
current agent stops serving or is no longer capable of serving. For example, let’s say you create a
durable power of attorney for healthcare and name your spouse as your agent, with your brother
as your successor agent. You and your wife are involved in a car accident and both lose capacity.
In this situation, your brother would become your agent because your wife is unable to serve.
Similarly, if your wife had become your agent but decided she no longer wanted to serve, your
brother would take over agent responsibilities.

• Co-agents. Co-agents are two or more people who serve as agents simultaneously. Co-agents
typically have to act together, and must agree to any actions taken on behalf of the principal. For
example, if you named your spouse and your brother as your co-agents in your healthcare power
of attorney, both would have to agree about any medical treatment before your doctors could
provide it.

Third Parties and POAs

Many POA situations require your agent to act on your behalf when dealing with a third party. In
many of these situations, the third party might require the POA to meet standards that aren’t
imposed by state law.

For example, if you create a POA that allows your brother to manage your finances if you
become incapacitated, he might have to talk to a third party, such as your bank or creditors, on
your behalf. The bank might require that any power of attorney be no older than a year or two. If
it is older, the bank might refuse to recognize your agent’s authority, even though the document
complies with all relevant state laws.

In such situations, your agent can ask a court to force a third party to recognize the POA’s
authority. However, it’s often easier to take action beforehand by, for example, asking any third
parties if they have policies about POA use, and drafting POAs that comply.

Beyond POA

Powers of attorney are useful and flexible, but they are not catchall devices that serve all your
needs or protect all of your interests. For example, a power of attorney cannot control what
happens to your estate after you die. Furthermore, your agent under a POA cannot manage your
estate because the agent’s authority terminates upon your death.
1) According to S. 1A of the Powers of Attorney Act, 1882 (POA Act) a power of attorney
includes any instrument empowering a specified person to act for and in the name of the person
executing it.

(2) Power of Attorney is also defined under S. 2(21) the Indian Stamp Act, 1899 (Indian Stamp
Act) according to which Power of attorney includes any instrument (not chargeable with a fee
under the law relating to the Court fees for the time being in force) empowering a specified
person to act for and in the name of the person executing it.

(b) Power of Attorney as an Agency :

(1) A power of attorney is a delegation of authority in writing by which one person is

empowered to do an act in the name of the other. The person who acts on behalf of another
person (the principal) by his authority, express or implied, is called an agent and the relation
between him and his principal is called agency.

(2) A power of attorney holder is nothing but an agent as defined in S. 182 of the Indian Contract
Act, 1872 (Contract Act). The authority of an agent is his power to affect his principal position
by doing acts on his behalf. Actual authority is the legal relationship between the principal and
agent created by a consensual agreement to which they alone are parties.

(3) A power of attorney is a document of convenience. Where circumstances require appointing

an agent formally to act for the principal in a particular transaction, or a series of transactions, or
to manage the affairs of the principal generally, the necessary authority is conferred by a power
of attorney.

(4) In typical commercial transactions, a power of attorney may also purport to act as security to
enable the security holder to exercise the powers conferred on him, which would be difficult for
the donor to perform at a subsequent time. This subsequent nature of a power of attorney is dealt
with herein. II.