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You should be very cautious when handing over power of attorney; here's why

It is important to spell out the specific areas in which the agent can act on your behalf

Archit Gupta 

power of attorney (PoA)
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Many professionals, businessmen and high-ranking corporate executives have such busy schedules that they need to delegate certain duties to Sometimes, this can include crucial tasks such as carrying out transactions and executing contracts. That is when the (PoA) comes in handy. While using is definitely convenient, it also carries certain risks and is not something that one should do without due thought and care.

What is a : is a document that gives a person the legal powers to act on behalf of another. It can be used to hand over power to someone to act on your behalf when you are not available or are not capable of carrying out your own dealings. Non-resident Indians (NRIs), who cannot be physically present in India to carry out sale or purchase transactions of their properties, use it. The elderly, who are incapable or incapacitated, use it to allow someone to carry out financial transactions on their behalf. Those who lack expertise in certain manners use it to allow someone else to represent them or to execute contracts on their behalf. In India, is most commonly used in dealings, financial transactions, to execute contracts, file returns, and sometimes to represent a person before the authorities.

The person who hands over power is referred to as the principal. The one who receives the authority is referred to as the attorney (and sometimes, the agent). That person may or may not be a lawyer. The principal makes a in favour of an agent and delegates his authority to him. The is a valid legal document. Third parties rely on it to transact with the agent instead of the principal. A may be registered with a registrar or it may be notarised. 

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Trust is the key: A should only be given to a person whom you can trust to act on your behalf, such as a family member or a close friend. Give it only to someone who is both responsible and loyal to you. Remember that even after you have given a PoA, you still have the power to act on these matters yourself. Hence, a is not a complete ceding of your original rights, but only an authority given to someone to act on your behalf. By inserting a date of expiry, you can make it time bound. You can also revoke it if you wish to. If the principal dies during the term of the PoA, the latter stands automatically revoked and the heir mentioned in the will takes over.

General versus special PoA: There are two types of – general and special. A general gives wide-ranging powers to the agent. The principal could authorise the agent to buy or sell property, conduct business on his behalf, and so on. No specific purpose is mentioned here. Instead, the agent is given powers to act on behalf of the principal in a wide range of matters. When handing over general power of attorney, the principal can decide to exclude some powers specifically, and the agent will not be able to act on those matters. 

In case of a special power of attorney, the principal authorises the agent to act on his behalf in specific matters only. In other words, only limited powers are given to the agent. For instance, special may be used for the purpose of brokering specific agreements, to perform specific business-related tasks, close or operate bank accounts, undertake sale or purchase of equities and other investments, file returns, or represent the principal before the authorities.

Minimise your risks: The importance of choosing your agent with great care and discretion cannot be emphasised enough, especially in matters where doing so can have a big impact on your finances. In addition, you can also take a few steps to minimise your risks. Discuss at length with the person you plan to give authority to what he can and can't do on your behalf. Make the agent/attorney understand that whenever there is a matter of critical importance, it should be discussed with you thoroughly before he acts on those matters.  

Build trust and confidence and do not pass on your powers in haste. Engage professionals to draft the Once the document is ready, go through it and understand thoroughly the powers that you are going to delegate.

If you are giving general to someone to handle matters, you should exclude the right to sell or mortgage the Allowing someone to sell your via carries great risks. Such a must be registered and the powers that are being handed over must be clearly spelt out. may also have to liaise with the in their country to authorise the

Usually, when you authorise your chartered accountant to file and submit returns, or to represent you before the authorities, the risks are not very high. These are professionals who act on your behalf for a fee. They are unlikely to act in a way that harms your interests as doing so would jeopardise their future earnings from you.

One way to protect your interests is to engage a lawyer to double check the agreements that your agent enters into on your behalf and ensure that your interests are not jeopardised. Also, include an indemnity clause in the agreements signed by your agent. 

Finally, put in place a will so that your heirs' rights are protected. In case of untimely death of the principal, there should be no uncertainty regarding whom his and rights devolve to. Once the legal heirs take control of the property, they should fully understand their responsibility to file returns on time and pay all the taxes that are due.

The author is founder and CEO, ClearTax

First Published: Sun, November 26 2017. 09:53 IST
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