Sending an NRI power of attorney from abroad to India does not have to be a complicated process. Small mistakes may sometimes lead to expensive consequences, so the person (or grantor) sending the Power of Attorney from abroad to India must be familiar with the entire process. This post explores some common mistakes that are easily avoidable during this process.
Most of the time, NRI or OCI individuals are unfamiliar with the legal requirements of a foreign power of attorney under Indian Law. Surprisingly some Indian Lawyers are also unaware of the legal formalities required to make a valid NRI Power of Attorney from outside of India.
An example of an NRI Power of Attorney mistake –
A UK based NRI (grantor of the PoA) was undergoing a divorce with his wife in New Delhi. His lawyer in New Delhi advised him to send a Power of Attorney so that he can represent him in the divorce proceedings in the Court.
The NRI went to a UK qualified solicitor to seek legal advice on how to send a Power of Attorney from the UK to India. The UK solicitor drafted a power of attorney for him and simply verified the document as a Commissioner for Oaths.
When the Indian Lawyer presented this document in the New Delhi Court, the Honourable Judge did not accept the document as a valid Power of Attorney as it did not meet the legal requirements of a foreign Power of Attorney, so the Indian Lawyer could not represent his own client in Court. Eventually, the NRI had to undertake the whole process again in the correct manner.
Neither the UK based solicitor nor the Indian Lawyer was aware of the proper legal process of sending a valid Power of Attorney from abroad to India.
The process of sending a Power of Attorney to India does have strict requirements and even small mistakes may result in the Indian authorities not accepting the Power of Attorney. Hence, if a PoA is not executed properly, it can end up wasting precious time and money.
Top 5 NRI Power of Attorney mistakes to avoid:
The following are the top 5 mistakes NRI’s make while sending a Power of Attorney from abroad to India:
Incorrect details on the Power of Attorney document
You must ensure that the details mentioned in the Indian Power of Attorney are accurate and correct. The details mentioned in a power of attorney should be the same as found in the supporting documents. Personal details such as full name and address and details concerning the property if it is a power of attorney to sell.
If the details on a power of attorney differ from the supporting documents, this may not be accepted. For example, in the case of an NRI, the full name used in the document should be the same as shown on their passport.
Not knowing which powers are being granted through the NRI power of attorney
A Power of Attorney is a legally binding document, so any action taken under a power of attorney is also legally binding. It is imperative to know what powers are granted through this document. One safety measure would be to avoid granting unnecessary powers to an attorney if they are not required. For example, powers to sell are not required in the case of management of a property.
If you are unsure which powers you are granting, we strongly suggest you seek professional advice.
Not executing the NRI Power of Attorney in the correct manner
The legalisation process has strict requirements, and the PoA cannot be used if the legalisation process is not followed correctly.
Choosing the wrong individual to be an attorney
Choosing the wrong person as your attorney is one of the lethal mistakes. A Power of Attorney is a legally binding document on the grantor, therefore, giving a Power of Attorney is not advisable in the absence of a responsible and trustworthy person to act on your behalf. If you do not have anyone who you trust, it is highly recommended that you make arrangements to take care of your affairs personally.
Complex legal situations arise out of instances where an attorney has taken advantage of their powers.
Not cancelling the Indian power of attorney
It is possible to specify in the Power of Attorney that when a task is complete or after a certain date, the power of attorney will be revoked or cancelled. However, in situations where the expiry of the power of attorney is not mentioned, it is highly recommended that the document be cancelled through a deed of revocation.
Cancelling a Power of Attorney is an important step to avoid further usage and/or avoidance of a complicated legal situation.
How Whytecroft Ford can help with your NRI Power of Attorney
Being UK-based consultants, we understand the needs of our NRI clients. That being said, we have a range of services available for your NRI Power of Attorney.
Related links
- Power of Attorney Pack Service
- Sending a Power of Attorney from the UK to India
- The Real Cost of of an NRI Power of Attorney
- Pros and Cons of an NRI General Power of Attorney
- Power of Attorney Guide for Non-Resident Indians
Frequently asked questions
A power of attorney can be changed by a Deed of Rectification. The Deed of rectification will also have to be registered. Although, we recommend drafting a new power of attorney to avoid confusion.
If the Indian authorities or courts reject your power of attorney and declare it invalid, you will have to make a new power of attorney and follow the proper procedure of validating the document.
Unfortunately, yes a power of attorney can be misused. Therefore it is important that the powers granted are clear and concise without being too general. And more importantly, the acting attorney should be trustworthy.
An Indian power of attorney can only be cancelled by a Deed of Revocation. The Deed of Revocation will have to be executed in the proper manner, i.e. notarization and registration with the concerned authorities.
