Everyting NRIs Should Know about Power of Attorney (PoA)

As an NRI, it is not practical to visit India every time you want to do a transaction or sign a contract. Thanks to the PoA or Power of Attorney provision, you don’t have to!

In this article, we will discuss everything you need to know about the Power of Attorney (PoA) as an NRI. We will discuss aspects like:

Basics of Power of Attorney
Types of Power of Attorney
How to execute Power of Attorney as an NRI
Legal remedies if Power of Attorney is misused

Basics of Power of Attorney

Power of Attorney or PoA is a legal document that allows you to transfer powers to an individual to act on your behalf.

In this legal provision, you are referred to as the ‘principal’ whereas the person who you transfer powers to is referred to as the ‘PoA agent.’

PoA is a useful legal provision which can make transacting or performing acts that are not possible for an individual for several reasons.

NRIs can use it because they are not always present in India. Older people may use it because their mobility might be limited.

However, transferring critical powers to your PoA agent could backfire. Towards the end of this article, we have discussed some legal remedies in case your PoA agent misuses the PoA.

Types of Power of Attorney

There are primarily 3 types of Power of Attorney:

Special Power of Attorney
General Power of Attorney
Durable Power of Attorney

Let’s look at what each of these mean.

Special Power of Attorney (SPoA)

Special Power of Attorney or SPoA is used to transfer specific or limited powers to the PoA agent.

SPoA is generally used in matters of real estate and property. This means your SPoA agent can specifically conduct transactions related to real estate and property.

SPoA expires the moment your PoA agent has completed the transaction specified in the PoA document.

SPoA can be very useful for NRIs to bestow powers upon a trustworthy PoA agent in India to complete specific transactions/deals/acts on the NRI’s behalf.

General Power of Attorney (GPoA)

General Power of Attorney or GPoA has a much wider scope than SPoA.

A GPoA agent can basically replace you in different types of transactions/deals and acts ranging from paying taxes to appearing in courts.

GPoA expires when the principal becomes mentally incapacitated or unfit to make decisions.

GPoA is extensively used by old people with limited mobility as it helps them to conduct crucial transactions/deals/acts through a trustworthy PoA agent.

Durable Power of Attorney (DPoA)

Durable Power of Attorney or DPoA gives powers to your PoA agent to represent you or replace you for all types of transactions/deals/acts.

The only difference between GPoA and DPoA is that while GPoA expires when the principal becomes mentally incapacitated, DPoA is in effect as long as the principal is alive (no matter the health condition).

DPoA can be very useful if the principal wants a loved one (appointed as the PoA agent) to take medical decisions on their behalf because the principal is unfit to do so.

Note: All the types of PoA discussed above become ineffective at the moment of death of either the principal or PoA agent.

How to execute Power of Attorney as an NRI

The good part about the PoA execution process is that you (the NRI principal) need not be present in India to execute the PoA. But that doesn’t mean the process is online.

Executing Power of Attorney as an NRI involves the following steps:

Draft the deed or the contents of the document
Print the deed on plain paper
Get the deed attested/notorised by the Indian Embassy in your country of residence
Send the attested/notorised deed to your PoA agent in India
The PoA agent in India will have to visit the sub-registrar office and get the PoA registered within 3 months

Note:

A stamp duty has to be paid at the sub-registrar’s office to execute the Power of Attorney
The PoA execution requires the presence of two witnesses and their basic documentation to be submitted at the sub-registrar office

Tips to Execute the Perfect Power of Attorney

While the legal professional will help you execute a Power of Attorney successfully, here are some tips to execute a Power of Attorney that doesn’t backfire.

Choose your PoA agent carefully

This cannot be stressed enough. If you choose your PoA agent carefully, 99% of your work is done.

Draft a tight Power of Attorney

As the principal, the onus of drafting a tight Power of Attorney falls on you. Let a legal professional draft it for you but you must read it and play the devil’s advocate.

Try to find gaps that can be potentially abused if your PoA agent goes rogue and ask the legal professional to fill them.

Be Vigilant

You should be vigilant about what your PoA agent is doing on your behalf. If you become suspicious of their intentions or realise they are doing things that you didn’t ask them to do, immediately revoke the PoA.

Despite doing everything right, it may happen that your PoA agent misuses the Power of Attorney. Let’s look at your options in case this happens.

What to do if your PoA agent misuses the Power of Attorney?

This is definitely not an ideal situation to be in. Not only will you lose a trustworthy family member/friend but may also have to bear a financial loss.

However, you can sue your PoA agent if they misuse the Power of Attorney. You can even take proactive steps to stop them from misusing the Power of Attorney if you suspect they will do so.

Send a legal notice to your PoA agent to cease acting on your behalf if you suspect them to misuse the Power of Attorney
Inform the sub-registrar’s office that you don’t want to PoA to act on your behalf if you suspect them to misuse the Power of Attorney
Advertise in newspapers that the PoA agent no longer has the Power of Attorney that you had bestowed earlier
File a criminal complaint if your PoA agent has misused the Power of Attorney
File a civil suit if your PoA agent has misused the Power of Attorney
Approach the High Court of India if the above steps do not yield satisfactory remedy

Disclaimer: This article should be considered as legal advice. It serves the purpose of introducing you to various aspects of PoA. You should seek the services of a legal professional to understand the nuances of PoA better and execution of PoA.