30 August, 2009

POWER OF ATTORNEY: HOW TO AVOID MISUSE

By observing certain safeguards, one can safely grant a power of attorney without having to worry about it being used.
There are many cases where a power of attorney (POA) is granted with a specific intent but with passage of time the attorney holder assumes much more control due to liberal or sometimes even deficient drafting of the POA.
To ensure you power of attorney is not misused or it does not become a source of concern or a loss for you, the following factors should be remembered:
1. Ensure you know the attorney holder personally and do not issue a POA to person you are not confident about. Identification details of the attorney holder such as a passport number, PAN or election card should be available with you.
2. A POA should never be irrevocable unless you are selling a property. Always ensure the POA is revocable so that you can cancel it any time.
3. The POA should always be registered. This way it is easy to cancel or revoke it at the appropriate time.
4. You should not give open ended and sweeping powers in the POA. Avoid the use of words such as “all rights,” “and right”, “any action that the attorney holder deems fit”.
You should identify to the purpose for which the POA is needed and draft a POA conforming to the duties and rights needed.
5. Always ensure that the photograph of the executives and the attorney is fixed on the POA.
6. In case the powers to the attorney are needed only for a limited period then you should prepare the POA for a fixed period only.
7. A general POA should be avoided unless absolutely necessary. You should grant a specific POA at all times.
How to revoke a power of attorney
Revocation of a power of attorney is a necessary when the purpose of which the POA is granted is no longer required or when the executants finds that the attorney is either misusing the powers under the POA or is acting against the interest of the executant.
No reasons need to be assigned in case a POA needs to be revoked. A POA is operational during the pleasure and consent of the executants. It can be revoked at any point.
The procedure usually followed when revoking a POA is as follows:
1. A notice of stop of use and cancelling of powers under the POA so granted to the attorney has to be issued. This needs to be done by recorded delivery so that a valid date of cessation of powers is recorded.
2. Further the POA has to be cancelled at the registrar’s office where it was originally registered at the time of issue.
3. In case the POA had been in widespread use then it is always advisable to publish a public notice in a newspaper which has reasonable circulation in the city where the POA was issued.
4. A POA can also be cancelled by destruction of the original document.
A POA is difficult to cancel in the following cases:
a) When the attorney holder and the original POA document is not traceable. Hence is advisable that the attorney is known to you.
b) When the POA is not registered. This creates a lot of hassle in making the POA non-operative.
c) A POA which is irrevocable cannot be revoked unless there are suitable and justified grounds that the irrevocable POA was issued fraudulently.
The key to having a control over the POA you issue and revoking it at your convenience is, to follow all procedure and precautions at the time of issue of POA.
[Source: Consumer Voice, July 2009]
For any query:- deepakmiglani@hotmail.com

5 comments:

Anonymous said...

I need some advice related to POA .. My father in good faith had given POA to one of his younger brother.. Now he has misused the POA and has registered some part of property owned by my father.
My father feel very cheated and is completely shattered. Not for the fact that he lost some property but due to the lost trust factor

I want to know is there any legal alternative to this. I want to teach his brother a lesson

kanchan said...

mere elder brother ne frod krke meri ma se (joki unpad hai) power of attorney apne nam 12-10-2009 ko krali.power of attorney ke base par usne 8-12-2009 rajistee apni wife ke nam kar di hai.

kanchan said...

mere elder brother ne frod krke power of attorney apne nam 12-10-2009 ko krali.power of attorney ke base par usne 8-12-2009 rajistee apni wife ke nam kar di hai.

kanchan said...

mere elder brother ne frod krke power of attorney apne nam 12-10-2009 ko krali.power of attorney ke base par usne 8-12-2009 rajistee apni wife ke nam kar di hai
kya meri ma ko property return
ho jayegi.

Anonymous said...

mere elder brother ne frod krke power of attorney apne nam 12-10-2009 ko krali.power of attorney ke base par usne 8-12-2009 rajistee apni wife ke nam kar di hai.kya meri ma ko property return ho jayegi,