A legal instrument or power to act on behalf of another person for some specified purposes.
The deed of Power of Attorney (PoA) is the most commonly used document. Generally speaking, it is the delegation of one’s power to another. The PoA is a formal instrument by which one person empowers another to represent him, or act in his stead for certain purposes. This includes any instrument empowering a specified person to act for and in the name of the person executing it. The PoA is an authority given by a formal instrument whereby one person, who is called the donor, or the principal authorises another person, who is called donee, or agent, or attorney to act on his behalf.
The law of PoA is governed by the Powers of Attorney Act, 1882 (The Act). The law relating to PoA is a branch of law of agency. Generally speaking, attorney would never be liable for the acts done by him on behalf of the donor of the power or authority, unless relation of ‘Principal’ and ‘Agent’ is established.
By Section 1, the Act defines PoA as including any instrument empowering a specified person to act for and in the name of person executing it. Section 2 of the Act provides that donee may, if he thinks fit, execute and do any instrument, or thing in and within his own name, signature and his own seal, where it is required by the authority of the donor of the power. In this way, every instrument and executed functions shall be as effectual in law as if it had been executed or done by the done himself.
PoA can be of two types, i.e. general PoA and special PoA. By general PoA, the donor authorises donee to do most of the things on his behalf, while by special PoA or singular PoA, the attorney is authorised to do a particular thing or deed.
A general PoA must confer upon the donee all necessary powers with regard to the general affairs of the donor, or at least with regard to a particular class of general affairs of the donor. Even if one is to take a liberal view of general PoA, it must at least authorise the agent to act for the donor with regard to wider aspects of the affairs of the donor and not only a particular activity.
A person, who has attained majority, may execute PoA in favour of another person, who has attained majority including family members like brother, sister, father, and mother to act on his behalf.
The PoA can be revocable or irrevocable, which means that the power or authority granted by the donor can be revoked, unless the power granted is irrevocable. Even an irrevocable PoA can be revoked by following due process of law, i.e. to say giving public notice and informing all concerned. However, the person, who has suffered any act in pursuance of and on strength of irrevocable PoA, shall be protected by courts against revocation of irrevocable PoA.
An accused cannot be permitted to appear through PoA. An agent cannot become a pleader for the party in criminal proceeding, unless the party secures permission from the court to appoint such attorney or agent to act in such proceeding as a pleader. However, in no case the appearance of the accused can be made through a PoA holder.
Usually, a PoA deed is to be strictly construed. Literal construction is to be given to a written and unambiguous deed for determining the nature of the deed and its terms and purposes. Intention of parties can also be gathered from surrounding circumstances. One part of the instrument giving wide powers cannot be restricted on the basis of certain vague expression elsewhere, as it should be read as a whole. Generally, a deed of PoA is not required to be compulsorily registered, unless it is so required under a particular law.
Generally, a PoA is not required to be compulsorily registered, unless it is so required under a particular law.
The grant of PoA is common requirement of many people on account of various reasons, which are beyond their control. However, it maybe worthwhile to note that a PoA should be drafted with lots of care and alertness. The deed should be absolutely clear and the power or authority, which is given, should also be crystallised clearly and without any ambiguity. In short, there should not be any scope of misuse of the PoA by reading something more into it than was intended. It is also advisable that it should be drafted by a legal expert, who has vast experience of drafting legal documents.
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