Assignment on:

Power of Attorney
Course Title: Specific Relief Act,1877
Public Demand Recovery Act &
Registration Act,1908

Course code: L.L.B-704

Submitted To:

Ms. Nusrat Hasina

Assistant professor

Department of Law

Leading University, Sylhet

Submission By:

Md.Nasir Hasan

Id no: 1714050014

Department of Law

Leading University, Sylhet

 The content of table
1. Introduction
2. Meaning of the term ‘Power Of Attorney’
3. Importance of Power of Attorney
4. Classification of Attorney
5. Persons Competent To Execute
6. Authentication of power of Attorney
7. Presumption about Power of Attorney
8. Language of the Power of Attorney
9. Original Documents to Be Verified
10. Powers of Attorney by Two or More Persons
11. Revocation of Power of Attorney
12.Registration
13.Legal Powers Which Can Be Granted To the Attorney
14. Qualifications of an Attorney
15. Duties of the Attorney Holder
16.Conclusion
17.Reference
Introduction:

In the modern world where commerce and industry have assured large and long
roles to play , the need for entering into contracts of agreements in relation to
business and other transactions have become a common and necessary feature
of daily life. As man became busier it became more and 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. Granting a Power of Attorney is a legal process that
involves the drafting of a document which assigns to another person the power
to act as your legal representative. Principal should be careful while authorising
an agent as attorney to avoid inconvenience and expense of any legal
proceedings in the future.

Meaning of the term ‘Power Of Attorney’:

‘Power Of Attorney’ is an authority given by an instrument by one person, called

as the donor or principal, authorising another person, called donee or agent to act
on his behalf. There may be possibility of giving ‘Power Of Attorney’ by two or
more persons jointly to one or more persons. Here a legal authority is given by
the principal to the agent which may be broad or limited and an agent can take all
necessary decisions i.e. financial, property related matters and all other matters
where principal cannot be present to sign or in the case of principal’s illness and
disability. A paper signed by principal giving powers to an agent is sometimes
itself called a power of attorney. A paper giving a power of attorney should be
clear and understandable.

Importance of Power of Attorney:

A power of attorney document is an extremely important part of estate planning

yet one of the most misunderstood. It is often convenient or even necessary to
have someone else act for you as there is advancement in the business and
commerce transactions. As many people confuse the power of attorney (POA)
with a will (Probate), but these documents are two very different things and have
two very different functions. A will comes into effect on the day person die. A
POA applies during a person’s lifetime and ceases to apply when he dies. So you
actually need both a POA and a will as they complement, and do not overlap,
each other. To add a twist to the subject, there are two types of POA: one for
property and one for personal care. These two types are completely separate.
They deal with different areas of your life and both are required for effective
estate planning.

Classification of Attorney:

The Power of Attorney can be classified into two categories which includes:

General Power of Attorney: A general power of attorney is one by which an

instrument is executed by the principal authorising the agent to do certain acts in
general on his behalf. The word ‘General’ here means that the power must be
general regarding the subject matter and not general with regard to powers in
respect of a subject matter. If the subject matter is not general but restricted to
something either specific or specifically mentioned by the principal while
drafting an instrument then it will not constitute a general power of attorney. It is
otherwise called as limited power of attorney.

Special Power of Attorney: A special power of attorney is one by which a

person is appointed by the principal to do some specified act or acts. In this type
of power of attorney, an agent conferred with a power to do specific act in a single
or specified transactions in the name of the principal.

Durable Power of Attorney: A Power of Attorney which specifically says

otherwise, agent’s power ends if principal become mentally incapacitated.
However, a power of attorney may say that it is to remain in effect in the event of
future incapacity of the principal. A power of attorney that says this is called a
durable power of attorney.

To ascertain whether power of attorney is of general or special in nature, the

subject matter in respect of which power is conferred Is to be seen accurately.
The power of attorney is the unilateral document wherein donor or the principal
gives authoritative power to the agent by signing the document and the agent’s
sign is not always required.
Persons Competent To Execute:

A power of attorney can be executed by any person who is competent to enter

into a contract. However, the married women can execute powers of attorney
even if they are minors. A company while executing power of attorney must make
conformity with the ‘Articles of Association’ and its common seal. A person must
be competent to give power to the appointed person so that it will not affect the
legality of the instrument/deed of power of attorney.

Authentication of power of Attorney:

As per Indian law, a power of attorney is a legal document that has to be properly
framed, using the right legal terminology and setting out the objectives and
responsibilities that you wish to authorise the appointee to carry out on your
behalf. If a person wants to authorise someone to act as a power of attorney on
his behalf, it must be signed and notarised by a certified notary advocate, who is
able to declare that you are competent at the time of signing the document to issue
the said power of attorney. You will need to show your ID to the notary advocate
before he/she is able to certify and issue the document. It must be executed and
authenticated by the registrar or sub-registrar of assurances as per the
‘Registration Act, 1908’.

Presumption about Power of Attorney:

A power of attorney is legal written document which has more legal value and
the authenticated attorney will be presumed by the court as legal document under
‘Indian Evidence Act, 1872’. According to the Section: 85 of ‘Indian Evidence
Act, 1872’, which provides that the court shall presume that every document
purporting to be a power of attorney, and has to be clearly authenticate and
executed before the notary or magistrate. If there is any issue arises concerning
to the genuineness of the attorney then proof of its execution can be called for the
verification.
Language of the Power of Attorney:

An instrument of power of attorney must always use the language known to the
donor and if the donor is an illiterate person then scribe and identifier should
explain all the contents of the document in the language known by the donor and
it has to be certified by the donor that he has understood all the contents and then
he has to put thumb mark on the document. Lastly the administrative officer will
take the oath from the donor stating that he knows all the contents of the document
and he knows the identifier. A sign and seal must be put by the administrative
officer after complete verification of the document.

Original Documents to Be Verified:

A power of attorney which is accurately authenticated by the notary or any

magistrate, an affidavit has to be filed with all the original documents of the
power of attorney authorising an agent to do certain acts. All the documents will
be verified by the court and then court will register power of attorney by putting
seal and sign. It is very much essential to make the power of attorney valid.

Powers of Attorney by Two or More Persons:

A power of attorney may be executed by two or more persons jointly in favour

of one or more persons and when there are several persons as attorneys a complete
authorisation in letter to be given by one of them for acting severally. A clause
should be included while drafting the deed of power of attorney that all the
attorneys should act jointly or separately.

Duration of Granted Power:

 A general power of attorney remains in force unless expressly revoked or
determined by the death of either of the party. A special power of attorney will
be in force until the specified act is not completed. Duration of the power will
depend upon the type of the attorney or there may be a fixed period of power
granted by the principal which must be included in the deed.

Revocation of Power of Attorney:

A power of attorney may be revoked at any time by the principal or donor by

giving a written notice to the agent, unless it is for a particular fixed period.
Revocation usually possible when principal dies or becomes insane or becomes
bankrupt. The principal himself can revoke power of attorney if the business for
which the agent was appointed is over as mutually agreed upon by the principal
and agent. In case if principal has named a spouse or registered domestic partner
as his agent, his or her authority to act under the power of attorney is
automatically terminated in the event of divorce, legal separation or termination
of the registered domestic partnership.

Registration:

A power of attorney is not compulsorily registrable unless it creates an interest

in any immovable property i.e. charge in favour of donee. Registration of power
of attorney is optional In India, where the ‘Registration Act, 1908’, is in force,
the Power of Attorney should be authenticated by a Sub-Registrar only, otherwise
it must be properly notarized by the notary especially where in case power to sell
land is granted to the agent. If a power of attorney is in respect of an immovable
property of value more than Rs100 it must be registered. Registration of power
of attorney authenticates the deed of power of attorney.

Stamp Duty:
A power of attorney is chargeable under Section: 48 of Schedule 1 of the ‘Indian
Stamp Act, 1899’. A stamp duty has to be paid compulsorily by the principal or
donor in the jurisdictional registrar’s office.

Legal Powers Which Can Be Granted To the Attorney:

Broadly speaking a power of attorney provides an agent “all powers that the
principal has” to manage the principal’s financial affairs or make health care
decisions may be enough for many purposes. An agent may be authorised to:

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

ii. To manage, compromise, settle, and adjust all matters pertaining to real estate.

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

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

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

vi. To enter into contacts, and to perform any contract, agreement, writing, or
thing to make, sign, execute, and deliver, acknowledge any contract, agreement.

vii. To make health-care decisions for the donor or his minor children.

viii. To sue on behalf of the principal.

Qualifications of an Attorney:
 It is the duty of the Principal to appoint a responsible person as agent who should
act with utmost good faith. An attorney is a person who has been appointed by
the donor to act on his behalf. An ideal attorney is that who must be willing to act
in that capacity and he has to be impartial having integrity. An attorney should be
loyal to the donor and should not disclose any confidential matters related to
the business.

Duties of the Attorney Holder:

An attorney holder is a person who is authorised by donor legally. An attorney

must not exceed the authority given under the power of attorney. If the attorney
does exceed their authority, he or she may be liable for any damages suffered by
the donor or others. The attorney may, however, do all those acts which are
authorised, but only by a particular method, if the power of attorney so indicates.
If there is a breach of any condition by the attorney then he shall be liable to the
donor except in a case where he has acted reasonably. If there is some doubt as
to the wording of the power of attorney, a solicitor should always be consulted.
The attorney holder must also act towards the donor with the utmost good faith
and tell the donor the nature and extent of any interest which may conflict with
his or her duty. An attorney may pass on his or her powers and duties to another
person but only if authorised to do so by the power of attorney.
Conclusion:

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. The
agent's power of attorney expires on the completion of the transaction. If any
fraud by the power agent does not bind the principal.
Reference:

Section 32,33 under Registration Act,1908

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