Power of Attorney


Introduction


Well, to understand the real life application of power of attorney, there is need to first clear the concept regarding the power of attorney. This article is about the power of attorney covering the insights of all area lying within the same. In general people would say, just to know about the power of attorney is enough. Is it enough to understand what is power of attorney?


I would rather say that it is not enough just to understand the term. I mean to know about how the power of attorney takes place, its type and application is also necessary to apply the same in real life. The power of attorney is executed by a legally valid agreement by general understanding. Though in case laws, the definition is not enough to understand the legal application of labour law.

So, here is this article which would help you to understand power of attorney and its real life application.


I) Power of Attorney


A power of attorney is said to be a person appointed on be a person who acts and executes the agreement as in case of the person under whom he acts in his absence. The power of attorney is made by a legal document termed as “Power of Attorney” wherein a power of attorney is appointed by a person on whose behalf the power of attorney is appointed.


I.I) How is power of attorney executed


The power of attorney is vested with the certain rights, privileges and duties as per the terms of the power of attorney agreement but the power of attorney would not be the owner of the thing under which he is exercising his power. Likewise, the owner has also certain rights, privileges and duties as per the agreement. It can be stated by an illustration wherein: A being a owner of a land has made B a power of attorney of the said land. A afterwards, constructs a flat on the said land which cannot be questioned by B as a power of attorney. Now, A would have right to sale, dispose or modify the land as a owner of the land but B is having a possession of land wherein he can sale the same after taking permission from B, or B has provided a right under the agreement with respect to the same. B would have to act in the best interest of A and would not cause any harm to A’s land. So, A may himself can demolish the flat but the same cannot be exercised by B.


Therefore, in power of attorney B is the agent of A who is acting in the best interest of A and B would have rights as per agreement in A’s absence or with the permission of A. A power of attorney is generally seen to be a person who is capable enough having the qualifications required and a fiduciary relation exists so that the other person could appoint that person as a power of attorney.


In a power of Attorney the person who executes is called the ‘principal’ and to the person in whose favour the power of attorney is executed is termed as ‘agent’. The power of attorney may execute immediately or after a certain period of time or due to certain incapacity as specified under the power

of attorney.

[1] A power of attorney is to be signed by the principal in the presence of another individual chosen by the principal himself.[2]


I.II) General Power of Attorney and Special Power of Attorney

The exercising of the rights general in nature of the activities which is given by the principal to the agent is known as general power of attorney. This kind of power of attorney gives all kind of rights to the agent which is irrevocable and all the actions of the principal is under general power of attorney. [3]


Typically, in the general power of attorney all the activities of the principal is to be done by the agent which is usually in case of absence of principal. A general power of attorney is exercised for a certain period of time and may include filing of tax returns, settling claims, entering contracts and bank and other transaction. [4]


In special power of attorney an agent is appointed in a particular circumstance. In this type of power of attorney a certain activity or certain activities are to be taken by the special power of attorney therefore it is also called limited power of attorney.[5] A special power of attorney can be appointed in case of any occasional event or in case of travelling or in case of health issues or in case of certain work which cannot be done by us.””


II) Validity of Power of Attorney

It is easier for us to understand the theory of power of attorney. By understanding this, can you say you know its practical application? Is there any specific application with respect to power of attorney in law? These are questions we often come up while handling a real life situation of power of attorney. Does the theory solves our problem regarding power of attorney in its application? In my opinion, I would say no because in real life situation I have to look upon the practical situation by means of case laws. Well, the same I would illustrate further.


II.I) Unregistered power of attorney

Now, as the topic suggests we know for a power of attorney there should be an agreement as power of attorney to be executed. Can there be an power of attorney given by not executing a power of attorney agreement. Generally, the answer to this be no.

But in real life situation, suppose there is no legal document for the purpose of power of attorney and an agreement is executed by way of oral means or a document is there but it is not legally registered. Later on, a power of attorney executes a agreement acting as power of attorney on behalf of the principal.


Now, the question arises that is it valid in the eyes of law as per the legal santity of the power of attorney. If I ask you this, an instant answer if you could answer then it would be no but there are certain case laws which are not in view of this as whole. Now, the question arises but in general scenario a power of attorney is needed to bed registered to be held as power of attorney.


I can support the same with the help of certain case laws. Like in the case of Rajammal and Ors. v Moonkan & Ors.[6] the supreme court had stated that in case of a donation being made by an unregistered power of attorney would be applicable retrospectively. Contrary to which in Suraj Lamp and Industries Pvt. Ltd. v State of Haryana[7] the court said that a power of attorney is needed to be registered for its execution.


In theory, we can only find that in case of immovable property a power of attorney is needed to be registered while in other cases it is not necessary.


II.II) Evidential values of the power of attorney

Now, to understand the concept first we need to understand what is evidential values. It can be related to the term evidence in the law of evidence. Well, for a revision evidence can be oral or written means of material which is required to be proved before the court of law. Now, why people require evidence? This would be the question in us. The answer to this is that evidence is essential to make a party’s contention strong, to draw conclusion to the facts presented and to bring out the truth.


We can come back to our current discussion on the evidential value wherein the evidence presented gives brings out valuable result. So, the term is simple to understand evidential value. You might be wondering is there a need for evidential values in a power of attorney. Well, I would say yes in order of legal dispute. A power of attorney acts on behalf of the principal and in almost all situations of the principal in relation to the activities under the power of attorney an agent is always present.


To infer this, I would draw your attention to the case of Chellammal v. Krishnaveni Ammal wherein the court held that agent could not be presented as witness to the principal wherein the agent is not close”“to the principal. Therefore, I would like to say that if the agent and the principal had a close relationship then only he could be presented as witness.[8]

Conclusion


I would like to further end, that a general understanding of power of attorney is necessary for its implication. A power of attorney though being a legal document have role to play as in its validity as to the terms and requirements of the parties to execute the same which would reflect the validity of the power of attorney. In addition, the general and special power of attorney says in what ways power of attorney is being carried out in respect of rights, duties as per the activities of the power of attorney.

[1]Sheila-Marie Finkelstein, Powers of Attorney(GPSolo, Vol. 33, No. 4, ESTATE PLANNING (JULY/AUGUST 2016), pp. 36-40) [2]Andrew H. Hook, Lisa V. Johnson, THE UNIFORM POWER OF ATTORNEY ACT(Real Property, Trust and Estate Law Journal, Vol. 45, No. 2 (Summer 2010), pp. 283-318) [3]Difference between general and special power of attorney - KPS Legal, India, available at:https://www.setindiabiz.com/learning/difference-between-general-and-special-power-of-attorney/ (Last modified October 14, 2020) [4]General vs. Special Power of Attorney (POA PartIV),India, available at:https://www.doyourownwill.com/blog/general-vs-special-power-of-attorney-poa-part-iv/ (Last visited January 13, 2021) [5]What Special Power of Attorney Means, India, available at: https://www.investopedia.com/terms/s/special-power-attorney.asp ( Last modified: September 16, 2020) [6](1982) 1 SCR 174 [7](2012) 1 SCC 656 [8](2009) 3 LW (JS) 54 Sri R. Veeramani, Law Weekly, SCC Online, Evidential Values of the Power of Attorney of the Iandlord About Bonafide Requirement of the Landlord (published in 2009(1) LW Part-8, 25 J.S.)



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