Durable power of attorney
Sameer Kumar
(Querist) 11 November 2009
This query is : Resolved
My brother has given a durable power of attorney to my Aunt who lives in India , as he is an American citizen but of Indian origin (PIO), subsection vii of the PoA states -:
{Legal and administrative proceedings - to engage in any administrative or legal proceedings or lawsuits in connection with any matter herein}
we need to submit an application in the court that there are no legal heirs to our mothers assets apart from me and my brother , can my aunt sign this document on his behalf as she has his PoA or does it have to be signed by my brother?
will the courts accept the letter considering she holds his power of attorney to act on his behalf on legal matters ?
Thanks for your help
A V Vishal
(Expert) 11 November 2009
SAMEER
IT IS NOT CLEAR WHAT IS THE PURPOSE FOR WHICH THE POA WAS EXECUTED BY YOUR BROTHER. THE CLAUSE IN THE POA RELATES SPECIFICALLY TO IN RELATION TO THE POA AND IT SHOULD NOT BE GENERALIZED. FOR EXAMPLE IF YOUR BROTHER HAS GIVEN A POA TO PURCHASE A PROPERTY THE SAME POA CANNOT BE USED FOR SALE ALSO, PROVIDED THE POA CONTAINS CLAUSES BOTH FOR THE PURCHASE AND SALE OF THE PROPERTY.
FURTHER THE CLAUSES IN THE POA SHOULD BE HARMONIOUSLY CONSTRUCTED IN RELATION TO THE PRINCIPAL OBJECT OF THE POA.
THE CLAUSE REPRODUCED BY YOU, {Legal and administrative proceedings - to engage in any administrative or legal proceedings or lawsuits in connection with any matter herein}
KINDLY PAY ATTENTION TO THE WORDINGS AT THE END IT SAYS CLEARLY IN CONNECTION WITH THE MATTERS HEREIN AND NOT ALL MATTERS WHICH DOES NOT HAVE CONNECTION.
Sameer Kumar
(Querist) 11 November 2009
Dear Mr Vishal , thank you for your prompt reply. I will detail the section of the PoA , your help will be greately appreciated as i have no idea about the legalities of Indian law and am trying to find the best answer legally to resolve this.
1)Authority to act
2)To sell a specific plot of land ( number of plot and location is given)
3)Business and banking -to conduct and participate in any kind of lawful business , to recieve and endorse cheques.
4)Tax returns and profits - can represent
5)safe deposit box - can have access
6)proxy rights - given for stocks bonds, shares and investments
7)legal & administrative proceedings - to engage in any administrative or legal proceedings or lawsuits in connection with any matter herein (exact wording)
8)regardless of the above statement agent can not execute a will, a codicil ,or any will substitue , can not change the beneficiary of any life insurance policy , can not make gifts on my behalf,can not excercise any powers that would cause assets of mine to be considered taxable to my agent, can not contravene any medical power of attorney.(this is exact wording)
9)Durability - This durable PoA shall be irrevocable untill the trust corpus is surrendered by the trustees , shall not be affected by my death or disability except as provided by law, and shall continue in effectafter the surrender of the trust corpus untill my death or untill revoked by me in writing.(exact wording )
10) Reliance by third parties - third parties may rely upon the representation of the agent as to all matters regarding powers granted.
As you can see it is quite comprehensive, the PoA has been notarized in the USA , has 2 witnesses and has been registered in the court in India. now that you have a bit more information can you please help me with the original question. I really appreciate any help and guidance in this matter. best regards
Sameer Kumar
(Querist) 11 November 2009
ps: it has also been registered in the Indian embassy/consulate in New york and been signed by them
A V Vishal
(Expert) 11 November 2009
I am afraid that your aunt cannot sign in the instant matter since as described earlier the POA is in relation only to the following matters and not others:
1)Authority to act
2)To sell a specific plot of land ( number of plot and location is given)
3)Business and banking -to conduct and participate in any kind of lawful business , to recieve and endorse cheques.
4)Tax returns and profits - can represent
5)safe deposit box - can have access
6)proxy rights - given for stocks bonds, shares and investments
The POA is executed only for and in connection with the above specific reasons. Hence it is advisable to get another POA for the reasons mentioned by you in your query.
Sameer Kumar
(Querist) 11 November 2009
Sir thank you tremendously for your help, unfortunately people like me dont understand legal jargon and it gets difficult for us. one final question about one other clause, it is my understaning that a PoA is no longer effective after the death of the person ( with gods grace my brother is fine) however... since in section 9 he has stated that the PoA will not be effected by his deat or disability , does that mean in this case it can be treated as valid if something untoward was to happen ?
Regards
Sameer Kumar
A V Vishal
(Expert) 11 November 2009
No Sameer such clause is not effective in my opinion since any acts done only during the lifetime of the principal can only be ratified and upon his death the POA also ceases.
Raj Kumar Makkad
(Expert) 11 November 2009
Vishal has very well defined all the aspects of the quarry and I do agree with it.
Sameer Kumar
(Querist) 11 November 2009
Thank you both for your help :)
