Is it true that one can execute a durable power of attorty ?
A. A. JOSE
(Querist) 27 July 2012
This query is : Resolved
I would like to know as to whether a Power of Attorney can be operated and it holds good even after the death of the executer of the Power of Attorney. It is learnt that if a Durable Power of Attorny is executed, it can be acted upon by the Attorney even after the death of the person who executed the same.
Kindly guide as to what is the correct position in this regard and if any such Durable power of attorney provision is existing under the indian legal system.
Adv.R.P.Chugh
(Expert) 27 July 2012
Yes a Power of Attorney/Agency coupled with interest subsists even after the death of the principal. An agency is coupled with interest when the agent has pre-existing interest in matter over and above the remuneration as an agent. A classic example is a creditor being authorized to sell land of debtor and take his loan out of the same transaction.
ashutosh mishra
(Expert) 28 July 2012
‘Power of Attorney’ is defined under Indian law as a legal document in which the appointer of the document authorizes someone else to act on his behalf.
IT MAY BE GENERAL OR SPECIFIC OR DURABLE.
I can appoint and create agency for one or all such things I am lawfully authorized to do.
A general or specific (limited) power of attorney expires in case the principal or appointer becomes incapacitated. A durable power of attorney is created to overcome this limitation. A durable power of attorney does not terminate, if the appointer becomes incapacitated. It still remains effective. However, a durable power of attorney must include specific conditions, which authorize the appointee to survive the incapacity of the appointer. Such a power of attorney comes into effect as soon as it is signed by the appointer, unless restricted by some legal condition.
To me POA applicable beyond life should not be understood to be a durable POA.
If i have written a POA during my capacity to write one and i go mad thereafter so being not able to revoke it but it shall stand revoked on its own due to my incapacity so created for those days as i can not ratify and i can not revoke either;but i can meet this contingency by creating a DURABLE POA.
