DR RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Pleading, Drafting and Conveyancing

PROJECT

“POWER OF ATTORNEY”

Under the guidance of: Submitted by:

Mrs. Shakuntala “Sangam” Deeksha Sharma

Assistant Professor (Law) Enrollment No.: 170101050

Dr.RMLNLU. VI semester

B.A.L.L.B(Hons)
ACKNOWLEDGEMENT

I express my gratitude and sincere thanks to Shankuntala Sangam ma’am, for her support
throughout the making of this project. She has provided valuable guidance as and when required
without which this project would not have been in this shape. I would like to thank Dr. Ram
Manohar Lohiya National Law University for giving me this opportunity to work on this
project.  I would also like to thank my family for their endless support throughout the making of
this project. Lastly, I thank my friends for their support, for their help in collecting the material
and for critically going through the project and correcting the mistakes. 
INDEX

 INTRODUCTION
 POWER OF ATTORNY
 PURPOSE OF PoA
 TYPES OF PoA
o GENERAL
o SPECIAL
o DURABLE
 LEGAL BASIS FOR PoA’S
 REVOCATION
 ADVANTAGES AND DISADVANTAGES
 EXECUTING A FOREIGN POA IN INDIA
 DRAFT/SAMPLE
 CONCLUSION
 BIBLIOGRAPHY
INTRODUCTION

Power of attorney is granted to an “attorney-in-fact” or “agent” to give that individual the legal
authority to make decisions for an incapacitated “principal.” The laws for creating a power of
attorney vary from state to state, but there are certain general guidelines to follow. Before you or
a loved one signs any documents, however, be sure to consult with an attorney concerning all
applicable laws and regulations.

The principal determines the amount of power given to the attorney-in-fact, and this individual
can be given the authority to deal with only one particular issue (a specific power of attorney), or
to handle most of the principal’s personal and financial matters (a general power of attorney).
Regardless of the type of power of attorney granted, the attorney-in-fact is responsible for
keeping accurate records of all transactions that he or she makes on behalf of the principal. The
attorney-in-fact also is responsible for distinguishing between the types of decisions he or she
has the power to make and other decisions.1

PURPOSE OF APoA

There are multiple types of decisions that the attorney-in-fact can be given the power to make,
including the power to:

 Make financial decisions

 Make gifts of money
 Make health care decisions, including the ability to consent to giving, withholding, or
stopping medical treatments, services, or diagnostic procedures. (Note: your loved one can
also make a separate “health care power of attorney” to give only this power to an
individual.)
 Recommend a guardian

Normally the attorney-in-fact is paid, which means that the principal should decide on a set
amount—or the method for determining a pay scale. If the principal doesn’t provide for these
payments in his or her power of attorney document, the court will determine how much the
1
https://en.wikipedia.org/wiki/Power_of_attorney last accessed of 13th march 2016
attorney-in-fact will earn. The court, however, can never raise this amount above a fixed
percentage of the value of the principal’s property.

The attorney-in-fact can be a spouse, adult child, relative, or trusted friend of the principal, as
long as he or she acts in good faith on behalf of the principal at all times. It should be noted that
the actions of an attorney-in-fact are legally considered those of the principal, so the principal
should always choose a trustworthy individual. This is especially important because the power of
attorney is not regulated by the court system, making it easier for the attorney-in-fact to misuse
his or her power. In the document, the principal should always include restrictive language,
including clauses

 Requiring the attorney-in-fact to keep accurate and adequate records, which are to be
provided on a regular basis to the principal or other named individuals
 Prohibiting the attorney-in-fact to give gifts, or setting a limit on the amount of such gifts

Generally, not having a power of attorney document is better than having one that gives power of
attorney to someone that the principal doesn’t trust. Regardless, the principal should always let
another trusted individual—other than the attorney-in-fact—know where the power of attorney
document (original and copies) is kept and who the attorney-in-fact is. Because incapacitating
accidents are not predictable and can happen at any age, it is important to choose the right
attorney-in-fact, write a clear power of attorney document, and understand the ways that the
document can be challenged and terminated.

TYPES OF PoAs

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 decision. 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 power of attorney

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" elsewhere. In effect, under a durable power of attorney (DPA), 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 power of attorney

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.2

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 the legal wording requirements for a power of attorney
and advance health care directive in California. 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. Advance health care directives that are legal in all states are increasingly
available online, including the MyDirectives advance health care directive in the United States.

2
"General Power of Attorney vs. Special Power of Attorney". RocketLawyer. Retrieved 11 March 2016
Springing power of attorney

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 states statutory power of attorney forms are available Care in using
these forms is important because some agents have used their authority to steal the assets of
vulnerable individuals such as the elderly.

LEGAL BASIS FORPoA’sIN INDIA

Protecting The Document3

3
http://www.investopedia.com/terms/p/powerofattorney.asp?layout=orig retieved 14th april 2020
If the principal has selected an attorney-in-fact and believes that the power of attorney document
may be challenged, the principal can do the following things to protect the document:

 Make a videotape of the power of attorney statement and the principal’s intent to sign the
document. Keep this video with the document. It should be noted that any behavioral or
verbal quirks in this tape can be used against the power of attorney document as evidence of
the principal’s incompetence.
 Obtain a doctor’s statement at the time the power of attorney is signed regarding the
principal’s state of sound mind.
 Sign the document with multiple witnesses present regardless of state requirements.
These individuals can later testify to the principal’s knowledge and voluntary signing of the
document.
 Visit a lawyer to have the document reviewed so that the lawyer can testify to the
principal’s mental competency if needed.

Voiding And Termination

The power of attorney document can be voided several ways. If the document has not been
registered, it can be terminated by:

 The principal’s death

 A termination procedure designated in the original power of attorney document
 Destroying the document if the principal is still competent
 Revoking the durable power of attorney by a writing document that is signed, notarized,
and sent to the attorney-in-fact by certified or registered mail if the principal is still
competent4

REVOCATION OF POWER OF ATTORNEY

In the case of revocation of power of attorney, after you withdraw the POA from the agent,
then, your agent cannot act on your behalf for the work assigned by you to him/her. Revocation

4
http://info.legalzoom.com/void-power-attorney-20569.html retrieved on 14th april 2020
rules vary from state to state. It is then the duty of the principal to inform every third party that
the agent is no more authorized to perform the specified task. If you don’t inform, then, your
agent may still carry on the transaction with the third party on behalf of the principal and any
loss suffered by the principal then the third party would not be held liable.

ADVANTAGES AND DISADVANTAGES

POA has some advantages as well as some disadvantages. Firstly, starting with the advantages –

 Establishing POA is very cheap a small paperwork is required which contains the
specific work provided by the principal to the agent in a very easy language which can
be understood by both the principal as well as the agent.

 Family members can also act as an agent if you give power of attorney to them.

Now coming on to the disadvantages, after power of attorney is made in the favor of the family
members they may change their mind and starts betraying the principal.

 If the powers conferred upon the agent are too general, he/she may even start abusing
it.

How can a Power of Attorney Effective in India be Signed Abroad?

A power of attorney is an important legal document giving one person power to act on behalf of
another person. The agent can have broad-ranging legal authority or limited authority to make
legal decisions about the principal’s property, finances or medical care depending upon the type
of power of attorney. The power of attorney is frequently used in the events where the principal
can’t be present to sign important legal documents for financial transactions.

The scenario in which the power of attorney signed abroad

Where a person residing outside India wants to buy, purchase, sell or rent out a particular
property in India but unable to visit India and attend the sub-registrar office in person to get the
documents registered. In that case, the person can execute the power of attorney whereby he can
appoint his friend, family member and his lawyer to act as his agent/attorney and get his
document registered in the registrar office for the transfer of property and the registration of
property.

Types of Power of Attorney Executed

There are different types of Power of Attorney and they are follows as-

General Power of Attorney

It is one of the broadest types of power of attorney that grant absolute power to the agent for
handling the affairs on behalf of the principal. This type of power of attorney is less executed by
the principal because it grants the absolute power to the agent and there is a chance of abuse of
power by the agent.

Special Power of Attorney

It is one of the narrowest types of power of attorney that grant limited power to the agent for
handling the affairs on behalf of the principal. This type of power of attorney is more executed
by the principal because it grants the limited power to the agent and there is no chance of abuse
of power by the agent. It is also known as the limited power of attorney.

Durable Power of Attorney

It is the type of power of attorney which gives power to the agent for handling affairs on behalf
of the principal even if the principal becomes mentally incompetent and unable to take any
decision. For example, if a person falls in a coma but wants his wife to make a decision on his
behalf then he can denote that he wishes to have his wife to be his Durable Power of Attorney.

Health Care or Medical Power of Attorney

A Health Care or Medical Power of Attorney is the type of power of attorney where an agent is
authorized by the principal to make decisions on his behalf on matters related to medical
treatment. When a person falls ills he has the right to choose the kind of medical treatment he
wants to have but when he falls gravely ill and not in a condition to give his consent then, in that
case, the agent authorized by him will choose the kind of treatment for his principal.

Ingredient for a valid power of attorney

-Both the person giving and receiving must be competent.

-Minors are not competent to grant power of attorney.

-It should be given for legal purposes.

-The POA must be duly stamped, notarized or adjudicated as per the case.

-Power of Attorney executed abroad and authenticated by an Indian Embassy should be stamped
and adjudicated within three months after receipt in India.

Can Power of Attorney Executed Abroad?

Yes, section 14 of Notaries Act, 1952 empowers the central government to declare that the
notarial act done by notaries in other countries shall be recognized for specified purposes.

How power of attorney can be executed outside India?

If a person settled outside India and unable to visit India in the near future, he may execute a
power of attorney from India through the Indian embassy.

There are two ways to execute a power of attorney from abroad-

Through Legislation
In this case, signatures of the notary or judge before whom the POA is executed are required to
be authenticated by the duly authorized representative of the Indian embassy. As per section 3 of
the Diplomatic and Consular Officers Act, 1948 notarizing a deed from an authorized officer of
the Indian embassy would be considered a valid notary. Such power of attorney is not required to
be stamped at the time of execution. However, it needs to be stamped within 3 months from the
date of receipt of the POA India.

Apostalisation

It is the process by which deed of POA executed outside India is proven through an
apostalisation which is governed by Hague Convention, 1961. The apostille is a certificate which
confirms and verifies the signature/seal of the person who verified the document. However, this
deed too needs to comply with Indian laws such as the Indian Registration Act, 1908 and Power
of Attorney Act, 1882.

How to get Power Of Attorney attested at Indian consulate/embassy?

The procedure is simple and fairly regular at most Indian consulates worldwide. Generally, the
steps involved are:

1. Power of Attorney executed abroad for the purpose of sending POA to India does not
require an Indian stamp paper. A plain piece of paper can be used to write down the
POA all terms and conditions. The terms and conditions contain the list of all powers
a person want to share with the POA holder. List out whatever a person wants the
POA holder to do on his behalf.
2. Two copies of the POA document will be required by the consular officer.
3. POA document must be signed before the embassy officer at the time of attestation.
4. Two witness signatures are required on the POA document.

Documents required for Attestation of POA by Indian Embassy

 POA prepared documents along with copies

 Original passport + copies of all non-blank pages including first and last page.
 Copy of Address proof in the country of your residence. For example A bank
statement, driving license, utility bill etc.
 Proof of legal status in the country of residence, such as visa etc.
 Two passport size photographs
 The applicable fee at the time of attestation.
 Witnesses if going to consulate should also take their proof of identity documents.
They will be required when they sign POA at the consulate to confirm their identity.
Draft of PoA

Special Power of Attorney for a Court Case5

By This Power of Attorney I, ................. son of .................... residing at .......................................

plaintiff in civil suit No. .................. of ............................... hereinafter referred to as the said suit,
pending in the court of the .......... hereby nominate, constitute and appoint Shri .................. son of
Shri .................. resident of ................... as my attorney for me, in my name and on my behalf to
do or execute all or any of the following acts or things in connection with the said suit:

1.     To represent me before the said court or in any other, where the said suit is transferred
in connection with the said suit.

2.     To engage or appoint any solicitor, counsel, advocate, pleader or lawyer to conduct the
said suit.

3.     To prosecute the said suit and proceedings, to sign and verify all plaints, pleadings,
applications, petitions or documents before the court and to deposit, withdraw and receive
document and any money or moneys from the court or from the defendant either in
execution of the decree or otherwise and sign and deliver proper receipts for me and
discharges for the same.

4.     To apply for inspection and inspect documents and records, to obtain copies of
documents and papers.

5.     To compromise the suit in such manner as the said attorney shall think fit.

6.     To do generally all other acts and things for the conduct of the said suit as I could have
done the same if I were personally present.

And I hereby for myself, my heirs, executors, administrators and legal representatives, ratify and
confirm and agree to ratify and confirm whatsoever our said attorney shall do or purport to do by
virtue of these presents.

IN WITNESS WHEREOF, I the said .............. has hereunto set and subscribed my hand
this ................ day of ................... 2000.

5
http://www.advocatekhoj.com/library/agreements/powerofattorney/index.php accessed on 11th march 2016.
Signed and delivered by the within named

WITNESSES;

1.

2.

Identify by me

Advocate
CONCLUSION

A power of attorney can be drafted or executed by any person who is eligible to enter into a
contract with another person. As per Indian law, a Power of Attorney is a legal document and has
to be properly written using the legal terms and it defines the objectives and responsibilities
which the principal wants to authorise the agent to perform on his behalf. An affidavit has to be
filed will all the necessary original documents, which will be verified by the court and if
satisfied, the court will register power of attorney by putting seal and sign on it, this process will
make the power of attorney valid. Then, it has to be signed and notarized by a certified notary
advocate, who will in turn declare that the principal is competent at the time of signing the
document and will issue the power of attorney. At the end, it needs to be executed and
authenticated by the sub-registrar or registrar as per the ‘Registration Act, 1908’.

Power of Attorney (POA) is a legal deed that gives right or authority to one person (who is
referred as an agent) to sign the documents on behalf of another (who is referred as the
principal).
BIBLIOGRAPHY:

 Pandey J.N., Constitutional Law of India (44thedn, CLA 2007)

 Shukla V.N., Constitution of India (11thedn, EBC 1982)
 Seervai H.M., Constitutional Law of India 3 (4thedn, ULP 1996)
 Jain M.P., Indian Constitutional Law (6thedn, Lexis Nexis 2010)
 Srivastava K.K., The Law of Pleadings, Drafting and Conveyancing (6thedn, CLA 2000)
 Kumar H.L., Legal Drafting( ULP 2010)
 Srivastava R.D., Law of Pleadings, Drafting and Conveyancing (11thedn, CLA 1998)