It is fairly common for Indian expatriates to own or posses properties in India. As such they give powers to someone within the family or those well known to them to deal with matters relating to their property. Power of Attorney is also created to avail Bank loans / mortgages and similar matters. By the execution of power of attorney, such powers are delegated in the manner as described in the document. The execution of an Indian Power of Attorney is often done before a Notary Public .
Process and Creation of Power of Indian Power of Attorney
The (Indian )Contract Act 1872 governs with agency created by Power of Attorney. An ‘Agent’ is someone employed to do any act for another or to represent another in dealings with third person/s. The person for whom such act is done, or who is so represented, is called the ‘Principal’ or Donor or Grantor in case of Power of Attorney. The person to whom such powers are given is an “Attorney”. The powers or authority of an Agent may be expressed or implied. An express authority can be given preferably as written document. An implied authority is gathered or inferred from the circumstances of the case. However, this usually does not apply for those sent from abroad.
The best practice to commence the process is to seek professional legal advice from someone in the receiving jurisdiction (relevant state in India ) experienced in such matters. If the receiving local authorities or officers in India find the contents of the Power of Attorney ambiguous they may reject. If it does not confirm with their formalities or requirements, they may refuse to act or reject the document. Your Attorney in India may also send you the drafted Power of Attorney, however, it is strongly recommended that a professional Indian legal advisor review the Powers you give in the document. This is done to ensure that you understand the legal implications of signing the same. For eg: If the Power of Attorney is irrevocable or with powers to sub-delegate.
India is a federal union comprising 28 states and 8 union territories, with a total of 36 entities. They follow respective rules and guidelines , therefore the execution formalities or process of executing Power of Attorney abroad may not be uniform or similar for all states. Formalities or process for a Power of Attorney executed for state of Punjab may not be the same for Gujarat or Andhra Pradesh.
The Indian Power of Attorney will usually require you to have two witnesses who will sign the document. You must ensure that the witnesses are not related to you. Ideally, friends colleagues or neighbours ,or those do not benefit from the execution of Power of Attorney in any way. The Power of Attorney will then have to be notarised by a Notary Public . It is important to find a Notary Public who knows the intricacies and formalities and complications of Indian legal documents, as they are to be signed , completed and notarised in a peculiar way.
Further legalisation from High Commission of India or Apostille from FCDO
As explained previously, in some cases, the next step will be to arrange an Apostille from Foreign Commonwealth Office (FCDO) . The Apostille is given on the Notary`s Certificate on the document, and your Notary should be able to arrange the Apostille. In some cases you may visit the Indian High Commission in the UK to get your documentation further legalised. The Indian High Commission has specific requirements for individuals who require attestation of their documents. You will find some details in this link: https://www.hcilondon.gov.in/page/consular-information/
In essence, a Notary who is familiar with the above formalities, like the writer of this article, can advise you to ensure smooth and effective completion of the process.