A power of attorney is a document that confers on an individual the authority to act in the position of another in either a complete or limited capacity. A special power of attorney grants an agent specific authority to act in the capacity of his principal.
The person who delegates his powers to another is called the principal or the grantor while the individual who is authorized is known as the agent. The agent could be granted the power to buy a home, negotiate a business deal or make cash withdrawals for his grantor.
An individual who has suddenly been affected by some form of mental instability may decide to grant a special power of attorney which will give the agent some limited powers to that will enable him to buy, sell or manage a property in his capacity.
A special power of attorney is often initiated where the principal is unable to perform certain functions because of an ill-health or other commitments.
WHAT IS SPECIAL POWER OF ATTORNEY?
A special power of attorney is a document or an authorization that empowers the agent or the attorney in fact to act in the capacity of the grantor under specific circumstances. In a special power of attorney, the powers that has been granted will be executed in specific aspects as may be contained in the agreement.
In many instances, different persons may be granted the special power of attorney and will be named by the grantor for their specific area of interest.
A special power of attorney should be granted in writing. In some areas of jurisdiction, the agreement must be duly signed, notarized and registered before it can become a legally binding document.
Your choice of an agent should be made with caution because you can be held accountable for the decisions taken by him; especially if it relates with his responsibilities as an attorney of fact.
WHAT MAKES THE POWER OF ATTORNEY SPECIAL?
The power of attorney becomes a special power of attorney when it is limited to specific roles. The agreement document will provide you (agent) with the target tasks you will perform for your principal.
WHAT IS THE POWER OF ATTORNEY?
The power of attorney is an agreement signed by the parties which authorizes an individual to act in the capacity of another on either general or special capacity. A power of attorney can either be limited or complete.
WHAT IS A GENERAL POWER OF ATTORNEY?
In a general power of attorney, the agent is authorized to make all the decisions in the capacity of the grantor. If you are to stay away from the country for a long time, you can authorize the agent to carry on with business transactions, payment of staff, deals and management of your properties. Under a general power of attorney, the agent is granted wide/unlimited authority on all affairs that pertain to the obligations of the principal.
WHAT IS A DURABLE POWER OF ATTORNEY?
A Durable power of attorney allows the agent to make decisions for the grantor even if he is dead or incapacitated. It is usually referred to as a power of attorney with provisions for durability.
WHAT IS A HEALTH CARE POWER OF ATTORNEY?
A power of attorney which allows the agent to make health care decisions for the principal is called a health-care power of attorney. An example of this decision is terminating of life support, blood transfusion, mercy killing and much more. A health-care power of attorney is sometimes referred to as a health care proxy.
WHAT ARE THE DIFFERENCES BETWEEN A SPECIAL POWER OF ATTORNEY AND A GENERAL POWER OF ATTORNEY?
|Special Power of Attorney||General Power of Attorney|
|The tasks to be performed are specific in nature.||The tasks to be carried out by the agents are limitless.|
|The power is ineffective once the task has been completed by the agent.||The authority is not limited to a specific task.|
|It comes to an end once the grantor is incapacitated or dead.||It is mostly durable i.e can still be effective on the death of the principal.|
|A Relationship with the principal may not be a major requirement for you to become an agent.||In most cases, a relationship with the principal is very essential.|
WHAT YOU SHOULD CONSIDER BEFORE ISSUING A SPECIAL POWER OF ATTORNEY
- As the principal, you will be held accountable for any hasty decision that has been taken by your agent; so, you must choose your agent carefully.
- If your agent will be paid for the services, ensure that the financial details are included in the agreement.
- You may not have to get the agreement notarized.
- If you want to change from a special power of attorney to a durable power of attorney, the agreement must be notarized and witnessed.
HOW CAN YOU MAKE A SPECIAL POWER OF ATTORNEY AGREEMENT?
To make a special power of attorney, you will under the following steps:
- Draft the agreement – the agreement must be drafted on a stamp paper of appropriate value as per the State rules in which the SPA is being made which will provide the details and the responsibilities of the parties involved in the deed. The details of the grantor and the agent including the working conditions must be clearly stated in this document.
- Payment of Stamp duty – the stamp duty must be paid and the draft must be printed in a Stamp paper of an appropriate amount. This is an unavoidable step except for those who are staying outside the country.
- Registration – the agreement must be registered in the sub-registrar’s office in the jurisdiction of the location of the property. You must endeavor to pay the appropriate registration fee charged in the area.
- Signature – the grantor and the agent must ensure that the document is duly signed in the presence of two witnesses who will have their signatures penned in the document. The parties in the deal must sign their signatures in the presence of the registrar.
WHAT ARE THE FEATURES OF A SPECIAL POWER OF ATTORNEY AGREEMENT?
The following are the details that must be found in the special power of attorney deed:
- Grantor details – the name, occupation, age, address and role of the person who has authorized the agent must be listed in the document.
- Agent’s details – the name, duties, address, age and occupation of the agent who has been authorized must be listed in the document.
- Obligations – specific duties of the agent who has been authorized must be stated in the deed. The powers and limitations of the agent must also be included here.
- Reason for authorizing the agent – a valid reason must be granting such powers to another must be clearly stipulated. An example is ill health or holiday visitation abroad.
- Date – the date that the deed was drafted and the day the powers of the agent will take effect must be clearly stated.
- Location – the place or the city that the document was prepared must not be omitted.
- The grantor’s signature – the signature of the grantor must be duly signed at the end of the document and at the bottom of all the pages of the deed.
- Signature of the witnesses – the two witnesses are to pen their signatures, names and address at the bottom of the agreement. They should also state that they have witnessed the signing of the document.
HOW CAN YOU MAKE A DEED TO BE LEGALLY BINDING?
The following steps must be taken to ensure that your deed is legalized;
- It must be made in a stamp paper.
- The signature of the grantor must appear at the bottom of all the pages of the agreement.
- The deed must be signed by two witnesses.
- If it is not involving an immovable property it can be notarized.
- The document must be registered within the jurisdiction of its location and only at the sub-registrar’s office.
ADDITIONAL FACTS TO CONSIDER BEFORE YOU DRAFT AND REGISTER THE POWER OF ATTORNEY DEED
Before you draft and eventually register the deed of the special power of attorney, you must ensure that:
- You are mentally sound and that you are fully conscious of your decisions.
- The special power of attorney is granted only for specific matters. The responsibilities of the attorney in fact must be clearly stated without any generalization of powers.
- If the grantor is an illiterate, the content of the deed must be read to him and his thumbprint shall be approved in the place his signature.
- Law on registration and stamp duty may vary among states. Endeavor to act in accordance with your state’s requirements on stamp paper and registration.
- Notarization is different from registration and a mere notarization of the SPA does not equals to registration. Note that if the rules demand registration then only a duly registered deed from a Sub-Registrar office can be legal and fit in the definition of registration.
CAN THE SPECIAL POWER OF ATTORNEY BE CREATED BY RESIDENTS IN ANOTHER COUNTRY TO GET THEIR TASKS DONE IN INDIA?
If your place of domicile is outside India but you have the intentions of granting special power of attorney to an agent who is residing in India to perform some specific task on your behalf, then you should take the following steps:
- Get the agreement drafted on a white and plain paper.
- The draft should be attested by the Indian embassy in your country of residence. Note that the deed should also be notarized there.
- As the grantor, you will have to sign in all the pages of the document.
- Get the attested copy of the agreement to someone residing in India via a registered post.
- The deed should be registered by the Indian recipient based on the rules of registration in his area of residence either in the Sub-Divisional Magistrate office or Sub-Registrar office.