What is Power of Attorney?
A power of attorney is a legal instrument that allows one person (the “agent” or “attorney-in-fact”) to act on behalf of another person (the “principal”) in a number of circumstances. This can involve making financial decisions, signing legal papers, and, in rare situations, making medical decisions. The power of attorney might be restricted to a single duty or broad enough to encompass a wide variety of tasks. The power of attorney is a valuable legal tool that may be used to safeguard interests and guarantee that affairs are managed in line with one’s intentions. It is especially important when a person is unable to make decisions for oneself due to illness, accident, or absence.
The Law Commission in its Sixty-Eighth Report examined the Powers of Attorney Act, 1882, which had worked smoothly for a century. The Act, though deals with power-of-attorney. Section 1-A of the Powers of Attorney Act, defines, power-of-attorney as under:
“1-A. Definition. In this Act, “powers-of-attorney” includes any instrument empowering a specified person to act for and in the name of the person executing it.”
Relation between Donor & Donee
The relation between the donor of the power and the donee of the power is one of principal and agent and the expression ‘agency’ is used to connote the relation which exists where one person has the authority or capacity to create legal relations between a person occupying the position of principal and third parties. The relation of agency arises whenever one person called the agent has the authority to act on behalf of another called the principal and consents to act. The relationship has its genesis in a contract.
What are the Requirements for Establishing Power of Attorney?
Knowing the prerequisites for getting a Power of Attorney is the first step in understanding rights and obligations. To issue power of attorney, a person must be of legal age. It means they must be at least 18 years old. If they are under the age of 18, may be eligible to form a power of attorney if their parents approve or if there is a statutory exception (for example, minors can designate guardians).
Someone else’s activities on behalf under a power of attorney form must fulfill specific state law standards in order to be legitimate. These include:
- Being mentally competent when executing the document;
- Having no conflict of interest;
- Understanding what duties will be required;
- Not having been convicted or charged with certain crimes such as fraud or embezzlement within the previous five years;
- Being willing and able physically perform those responsibilities outlined in writing by yourself (if applicable);
- Not being disqualified due to a criminal history involving dishonesty/fraudulent acts in the past.
Benefits of Power of Attorney
A power of attorney allows appointing someone trustworthy to act on behalf, which is a significant advantage. One can have peace of mind knowing that their affairs are being managed in accordance with selected preferences if one chooses a trustworthy agent to work on your behalf. Another advantage of a power of attorney is that it might aid in the avoidance of legal issues and conflicts. One can avoid the requirement for family members or other parties to go to court to establish guardianship or conservatorship by appointing an agent to serve on their behalf. This can save time, money, and emotional stress for everyone involved.
Convenience: A POA can make it easier to manage affairs if they are unable to do so. For example, if someone is traveling or incapacitated, a designated person can take care of financial or legal matters.
Protection: A POA can help protect from financial abuse or fraud by giving someone the power to manage finances and make decisions on their behalf.
Flexibility: You can specify the scope and duration of the POA to suit your needs. For example, you may grant a POA for a specific purpose, such as selling a property, or you may grant a more general POA that covers a range of decisions.
Peace of Mind: Having a POA in place can give time for loved ones peace of mind, knowing that someone’s trust is designated to act on their behalf if needed.
Avoiding Court Proceedings: A POA can help avoid the need for court proceedings, such as guardianship or conservatorship, which can be time-consuming and costly.
Execution Under Power of Attorney
According to Section 2 of the Powers of Attorney Act, 1882, the donee of a power-of-attorney may execute or do any document or act required by the authority of the donor of the power in his own name, signature, and under his own seal. Moreover, the document or act executed shall have the same legal effect as if it had been executed by the donee.
Under the common law of England, a person has the right to do through an agent whatever he can do himself, and that right has also been conferred on him in this country by Section 2. Powers of Attorney Act, 1982, which runs as follows: The donee of a power-of-attorney may, if he thinks, fit, execute or do any instrument or thing in and within his own name and signature, and his own seal is required, by the authority of the donor of the power, and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, or the donor thereof.
Section 26A of Income Tax Act, 1922 confers on a partner the right to apply for registration of the firm, and that right could be exercised both under the common law and under Section 2, Powers of Attorney Act through an authorized agent.
Object of Section 2 of POA
The object of Section 2 is to effect an instrument executed by an agent. This section proceeds on the assumption that there is the power of delegation available or exercisable under the existing law and provides that the donee of a power might act for and in the name of the principal.
Act Done in Pursuance of Power of Attorney
Section 3 of the POA 1872 provides that act done by a person in pursuance of power-of-attorney or payment made, without notice of death, etc. This section applies only to payments and acts made or done after this Act comes into force. It protects a person who has done some acts or deeds in good faith.
The Role of the Attorney in Fact
The attorney in fact has a number of responsibilities, which include:
Acting in the best interests of the grantor. The attorney-in-fact must make decisions that are in line with what they believe is best for their client. This includes deciding whether or not to sell a piece of property, and if so when to do so. Minimizing liability for themselves and others involved in carrying out their duties under this arrangement (such as real estate agents). This means ensuring that all agreements made on behalf of your loved one are fair and reasonable; if there are any disputes over these agreements later down the road due to some kind of misrepresentation or fraud on either side during negotiations then it could lead back through these documents which could end up costing everyone involved quite dearly!
Types of Power of Attorney
There are four main types of power of attorney: general, limited, durable, and springing.
General Power of Attorney
A general POA gives the agent broad authority to act on behalf of the principal in a number of situations. This can include managing finances, signing legal documents, and making decisions about healthcare. It is important to note that a general power of attorney terminates upon the death or incapacity of the principal.
Limited Power of Attorney
A limited power of attorney is used to give the agent authority to perform specific tasks. This can include signing a contract, managing a business, or selling property. The scope of the authority is limited to the specific task or tasks identified in the document.
Durable Power of Attorney
A durable power of attorney remains in effect even if the principal becomes incapacitated. This means that if the principal becomes unable to make decisions for themselves, the agent can continue to act on their behalf. One should note that they must explicitly state a durable power of attorney in the document.
Springing Power of Attorney
A springing power of attorney only becomes effective under certain conditions, typically the incapacity of the principal. Agents do not have any authority until specified conditions are met.
What are the Rights and Responsibilities of the Attorney in fact?
Attorneys have the authority to take action on behalf of the principal. The powers conferred in the POA paperwork define the extent of the authority granted. This may consist of Making financial decisions such as investing money and paying bills; Choosing a principal’s healthcare if they are unable to do it for themselves; carrying out commercial activities, such as purchasing real estate or shares; and dealing with other legal issues, such as submitting tax returns and getting married (if you haven’t already).
What are the Rights and Responsibilities of the Grantor?
Revocation of the Power of Attorney. At any point, the grantor has the option to rescind their POA. You may achieve this by:
Writing “I revoke this document” on a piece of paper, signing it in the presence of two witnesses, who both sign and date it. A lawyer or another person designated in the agreement as the agent for receiving notices from banks and other organizations must then receive this documentation from the person providing the power.
Having another signer, such as your spouse or kid, who later gives notification orally or in writing that they have retracted their signature from this instrument, act as the principal and grantor.
Limitations of Power of Attorney
As you can see, there are many benefits of having a POA in place. However, it’s important to know that there are also limitations on what the document can do.
The most obvious limitation is that agents cannot make medical decisions. Law or court order does not authorize them. For example, if a doctor says that he needs to perform surgery on his leg and asks for permission but doesn’t have any written documentation from someone who has authority over medical decisions on behalf of the patient (such as a parent), then he will be unable to proceed with the procedure unless another party steps forward with their own form of legal authorization (such as an advance directive).
Another limitation is that powers of attorney generally expire after five years. Until and unless renewed by both parties involved in creating them–so keep track!
What is the Duration of Power of Attorney?
The duration of Power of Attorney depends on the type of power you have signed. There are three types:
Durable Power of Attorney
This is a legal document that allows you to appoint an agent or attorney-in-fact (the person who will act on your behalf) to make financial and medical decisions for you if you become unable to make them yourself. The principal can also use it in conjunction with Springing Powers, which only grants the agent/attorney-in-fact access when certain conditions are met. Durable powers are effective immediately upon signing and remain in effect until revoked by either party or until death occurs; they do not expire unless specifically stated otherwise in writing by both parties before signing takes place.
Springing Powers
These powers take effect when certain events occur such as hospitalization or injury due to a car accident; however, unlike durable powers, these do not remain valid indefinitely unless explicitly stated otherwise by both parties prior to execution.
Revocable Powers
These allow one party (usually someone close) control over another’s finances without requiring any specific triggering event like those mentioned above with springing powers. However, unlike durable POAs, these can be revoked at any time by either party involved.
What are the Requirements for Revoking Power of Attorney?
While the specific laws governing the termination of a power of attorney relationship can vary depending on the jurisdiction. It is generally true that there are many situations that can cause the relationship between the principal (the person who authorizes the POA) and the agent (the person appointed to act on behalf of the principal) to cease to exist. Some common situations that can terminate a power of attorney relationship include:
Death or incapacity of the principal
If the principal dies or becomes incapacitated, the power of attorney relationship automatically terminates.
Fulfillment of the purpose
If the power of attorney was created for a specific purpose (such as to handle a single transaction), the relationship may terminate automatically once that purpose has been fulfilled.
Revocation
The principal can revoke the power of attorney at any time by following the procedures required by law.
Expiration
If the power of attorney has a specified expiration date, the relationship will terminate automatically once that date has passed.
Resignation or removal of the agent
The agent may resign from their role, or the principal may choose to remove the agent from their position.
The bankruptcy of the principal
In some jurisdictions, the bankruptcy of the principal can terminate the power of attorney relationship.
It is important to note that the specific requirements and procedures for terminating a power of attorney can vary depending on the jurisdiction and the specific circumstances involved.
What are the Potential Consequences of Failing to Revoke Power of Attorney?
The consequences of failing to revoke a power of attorney can be severe. If you fail to revoke your agent’s authority and they act on your behalf without authorization. Then, you may be liable for any losses that result from their actions. In addition, if the agent breaches their fiduciary duty by taking advantage of their position or using information about your finances in an unauthorized manner, then you could also face liability for this breach.
Conclusion
Power of attorney is a serious legal document that can have a profound impact. If you are considering granting power of attorney, it’s important to understand your rights and responsibilities as well as those of the person who holds power over you. Everyone should have a power of attorney in place to ensure their wishes are known and carried out after they pass away. A Power of Attorney is a useful tool that offers flexibility, convenience, protection, and peace of mind for loved ones overall. Consulting with a legal professional when creating a POA is always advisable to ensure proper execution and is legally binding.
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