Making an Indian Power of Attorney can be a confusing process, especially if you are residing outside of India. Without the proper knowledge and guidance, you may end up wasting your time and resources following a process only to end up with an invalid Power of Attorney.
The requirements of making an Indian Power of Attorney (or simply POA) are different from that of POA’s made for the UK, USA or Canada. Under Indian Law POA’s are required to have a specific structure as well as include certain legal language. And further, there are different types of POA’s, such as General Power of Attorney’s (GPA) and Special Power of Attorney’s (SPA). Hence it is advisable that you seek advice from qualified professionals who are experienced in Indian Law.
In this post, we will explore some of the important differences between GPA’s and SPA’s.
What is an NRI General Power of Attorney?
A General Power of Attorney is a legally binding document that can be used for a variety of purposes, with a GPA, you can empower a specified person to act for you in all matters whatsoever or in all matters of a particular nature. Some examples are property management, carry out personal or business financial transactions, representing in all legal matters in all courts and so on. A GPA can start as soon as you sign it, or it can start on a specific date that you write in the document.
What is an Indian Special Power of Attorney?
As expected, in contrast with a General Power of Attorney, a Specific or Special Power of Attorney is also a legally binding document; however, it is used for specific purposes or to deal with specific or restricted matters. Sometimes, this is also referred to as a limited power of attorney. Some examples would be – withdrawing money from an account, running a business, buying a property.
General Power of Attorney OR Special Power of Attorney
Understanding the key differences will help you decide whether you will need a GPA or an SPA:
The attorney in a SPA cannot exercise any other power beyond the scope of the document. Let’s take an example, an NRI gives a special power of attorney to his relative to represent him in his property matter in court. The SPA will specify that the relative is only allowed to represent the NRI in court. So the relative will not be able to exercise powers outside of what is mentioned in the document, for example, the relative will not be able to sell the property.
If you wish for your attorney to act for you in a different matter or go beyond the scope of the powers mentioned in the SPA, you will have to make another power of attorney authorising them accordingly. However, with a GPA, they may be able to complete all tasks within the general scope of the GPA, without the need for any other authorisation.
More than one SPA
Usually, you can make several different SPA’s, with different agents/attorneys for each, however, with a GPA, a broader or several powers are usually given to one agent. For example, you could create a SPA that only allows your spouse to manage a property and another SPA that allows your business partner to manage your business. Alternatively, with a GPA, you can allow your spouse to manage your property and business.
Expiration or cancellation
A special power of attorney expires on the completion of the specified task, once the task mentioned in the document has been completed, the SPA cannot be used for anything else, therefore it ends up becoming unusable. For example, an SPA to sell a property can no longer be used for anything else after the said property has been sold.
In contrast with a GPA, which either will expire upon an date/event specifically mentioned in the document or if nothing is specified, then it can only be cancelled if revoked through a deed of revocation.
A GPA will empower a person to carry out a range of activities on your behalf, for example – management of property may include selling, leasing and upkeep, etc. With a SPA you can limit the powers to a specific task, such as just leasing and upkeep. Therefore, a SPA will carry less risk of abuse of power by the attorney due to its limited scope.
In conclusion, the most important aspects of making a Power of Attorney are to understand what type of POA will best suit your needs, based on the nature and extent of powers that need to be given and period of validity. Regardless of whether it is a GPA or a SPA, you need to make sure that the person you choose is someone that you can trust to act on your behalf the way that you want.
How we can help
The team at Whytecroft Ford is highly experienced in Indian Power of attorney matters. If you are looking for assistance with your Indian Power of Attorney, call us on 02087575751 or use our contact form to get in touch with our team today.