Source Business standard
CS A Rengarajan
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Be cautious when handing over power of attorney |
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Many professionals, businessmen and highranking corporate executives have such busy schedules that they need to delegate certain duties to others. Sometimes, this can include crucial tasks such as carrying out property transactions and executing contracts. That is when the power of attorney (PoA) comes in handy. While using PoA is definitely convenient, it also carries certain risks and is not something that one should do without due thought and care. What isaPoA? :PoA isadocument that givesaperson 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. Nonresident 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, PoA is most commonly used in property dealings, financial transactions, to execute contracts, file tax returns, and sometimes to representaperson 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 bealawyer. The principal makesaPoA in favour of an agent and delegates his authority to him. The PoA isavalid legal document. Third parties rely on it to transact with the agent instead of the principal. APoA may be registered witharegistrar or it may be notarised. Trust is the key:APoA should only be given toaperson whom you can trust to act on your behalf, such asafamily member oraclose friend. Give it only to someone who is both responsible and loyal to you. Remember that even after you have givenaPoA, you still have the power to act on these matters yourself. Hence,aPoA is notacomplete ceding of your original rights, but only an authority given to someone to act on your behalf. By insertingadate 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 PoA –general and special. Ageneral PoA gives wideranging 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 inawide 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 ofaspecial 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 power of attorney may be used for the purpose of brokering specific agreements, to perform specific businessrelated tasks, close or operate bank accounts, undertake sale or purchase of equities and other investments, file tax returns, or represent the principal before the tax 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 haveabig impact on your finances. In addition, you can also takeafew 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 isamatter 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 POA. Once the document is ready, go through it and understand thoroughly the powers that you are going to delegate. If you are giving general PoA to someone to handle property matters, you should exclude the right to sell or mortgage the property. Allowing someone to sell your property via PoA carries great risks. SuchaPoA must be registered and the powers that are being handed over must be clearly spelt out. NRIs may also have to liaise with the Indian Consulate in their country to authorise the PoA. Usually, when you authorise your chartered accountant to file and submit tax returns, or to represent you before the tax authorities, the risks are not very high. These are professionals who act on your behalf forafee. They are unlikely to act inaway that harms your interests as doing so would jeopardise their future earnings from you. One way to protect your interests is to engagealawyer 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 placeawill so that your heirs´ rights are protected. In case of untimely death of the principal, there should be no uncertainty regarding whom his property and rights devolve to. Once the legal heirs take control of the property, they should fully understand their responsibility to file tax returns on time and pay all the taxes that are due. The author is founder and CEO, ClearTax LEGAL TANGLES It is important to spell out the specific areas in which the agent can act on your behalf |
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