Rahul, an OCI living in Singapore, wanted to sell his property in Noida, but could not visit India due to Covid restrictions. The buyer is desperately seeking to buy this property. And neither Rahul wants to lose this deal. How could he get this transaction done without his being present in India? (Read a detailed Post on OCI Status and new OCI Rules here)
Sachin, an NRI based out of London, wants to buy property in India, on Loan. Though he may send required documents through email, bankers want some local representative to sign papers on his behalf.
Being an NRI is sometimes very challenging. You need to manage affairs both in India as well as your Country of Residence (overseas).
It may be possible that you had done various investments in India before and after becoming an NRI, you may have a property, bank accounts in India. There could be loans being served in India. For managing these, you need to carry out various transactions, both financial and non-financial in nature. (Read: Who is an NRI?)
Although the digital world has made things quite simpler. A lot of transactions can be done digitally without your physical involvement. But certain transactions, especially those related to property or real estate, require your physical presence at the time of the transaction.
It would be near to impossible for you to visit India every time you wish to carry out any transaction. In such a situation, a Power of Attorney in India can be of big help. The Power of Attorney holder can execute the transactions on your behalf, rather than you being physically present.
In this article, we will cover:
- What is Power of Attorney in India for NRI and it’s benefits?
- What is the General Power of Attorney in India and the Special Power of Attorney.
- How to make Power of Attorney in India and some best practices to follow.
What is Power of Attorney in India for NRI?
A Power of Attorney in India for NRI is a legal document that provides the authority to a resident individual to carry out certain financial as well as operational transactions related to bank accounts, real estate, or making investments, etc. on your behalf. (Read a detailed post on NRI Bank Accounts in India here)
The person granting the Power of Attorney is the principal, or grantor and the person receiving it is called the agent, or holder.
Apart from doing transactions, the PoA holder can also act as a legal representative of the grantor and can also represent the grantor at government or financial institutions.
All acts done by the POA holder, stated in the deed, are legally binding on the grantor. So it becomes really important to grant power of attorney to the person you genuinely trust.
The Power of Attorney holder can surely help you with a number of things but in a limited capacity, as specified in the deed. Some of these are mentioned below:
- Making deposits, issuing cheques, giving standing instructions, bank statements and other tasks related to operating the NRE, NRO and other Bank Accounts in India. But the PoA is not allowed to open new bank accounts or repatriate funds outside India, as per RBI guidelines. (Also Read: Why is it important to file form 15CA & 15CB while repatriating money outside India?)
- Buying, Selling, or letting out your property in India. He/she can take care of the maintenance, repairs and insurance of the same. The holder can also take a home loan.
- The PoA holder can enter into business contracts or settle claims and file Income Tax Returns on your behalf.
- The PoA holder for NRI can also invest in mutual funds and other financial instruments like- Bonds, Shares, etc. and can also modify or change nominees in mutual fund folios. (Also Read: Mutual funds taxation – How is it different for NRIs?)
Types of Power of Attorney for NRI
There are two types of Power of Attorney for NRI in India. General Power of Attorney (GPA) and Special Power of Attorney (SPA). You may choose any of them as per your requirement.
General Power of Attorney in India
General Power of Attorney (GPA), as the name suggests is a legal document that is prepared to give the holder the right to execute almost any transaction pertaining to legal or financial matters in India. He/she can perform any of the tasks mentioned above related to bank accounts, properties, investments, etc.
General Power of Attorney in India provides the holder or agent with a higher degree of authority. So, before executing it, you should ensure that the holder is the person you can trust and would always act in your best interest.
Special Power of Attorney for NRI
Special Power of Attorney (SPA) is a deed prepared to execute a certain specific task. Through this, the grantor provides the holder with the right to perform only some specific duties, mentioned in the power of Attorney deed.
Once the task is complete, the Special Power of Attorney comes to an end and all the powers of the agent are revoked. You would have to prepare separate power of attorney deeds for all the tasks to be done.
There are General Power of Attorney in India for NRI format and Special Power of Attorney formats for NRI which can be referred to while making one.
There is one more type of Power of attorney, which is called Durable power of attorney. This is more popular and accepted in the western world and not in India. This is also called as Financial Power of attorney, which is given to managing the financial affairs of the person in case he/she becomes incapacitated.
More on Personal Finance
How to make a Power of Attorney in India for NRI?
First things first, the person to whom you are giving the power of attorney in India to execute the transactions on your behalf should be someone whom you can rely upon and trustworthy.
The procedure for Power of Attorney in India for NRI execution from your Country of Residence involves the following steps:
- Prepare two copies of PoA
You need to prepare two original Power of Attorney copies mentioning the details like- your name, father’s name, age, Indian and overseas address, holder’s name, father’s name, age, address, the reason for making the PoA, Date of Commencement, Date of revocation (if applicable), etc. on a plain paper.
- Sign it at Embassy/Consulate’s office
Once the Power of Attorney is prepared, you need to sign it on all the pages but not at that time. It needs to be signed in the presence of competent authority at the Indian Embassy or Consulate’s office. The officer then attests to your signatures. Documents like- both original and copy of passport, ID proof, local address proof, two passport size photographs would be required. (Although some consulates are not allowing walk-ins due to Covid and are accepting documents through mail. In this case, original documents are not required, you need to send only photocopies.)
- Two Witness Signatures
Also, the signatures of two local witnesses would also be required on the document at the Embassy or Consulate’s office itself. In case, they are not available to sign physically, you need to notarize their signatures separately.
- Pay the fee
Now you need to fees for attestation of the Power of Attorney document. It may vary from country to country. And even the mode of payment may vary.
- Send it to India
Once the Power of Attorney deed is attested, it can be sent to the holder or agent to the Indian Address, through a registered post.
- Get it Registered in India as well
To make the Power of Attorney in India legally valid, the person to whom it is sent needs to get it registered in India at the Sub-Divisional Magistrate’s office where his/her residence is situated within 90 days of the receipt of the same.
Revocation of the NRI Power of Attorney in India
Revocation of the NRI Power of Attorney means that it is cancelled with immediate effect and all the powers in the hands of the holder/agent are annulled. The principal/grantor can cancel the Power of Attorney anytime during his/her lifetime. There could be various reasons for such revocation.
- The purpose of making the NRI Power of Attorney is accomplished
- The inability of the PoA holder to perform the tasks
- Mutual agreement between the grantor and the holder
- Mismanagement of powers by the holder/agent
- Order of the Court
The holder can also cancel the PoA if he/she wishes to do so. Upon revocation, it is important to cancel the Power of Attorney registration by visiting the same office where it is registered. A revocation document needs to be prepared and signed by both parties if the date of revocation is not mentioned on the PoA.
The Power of Attorney in India automatically gets cancelled on the death of the grantor or holder. Also, if he/she is declared insolvent or mentally incompetent.
The PoA holder should be informed about the cancellation of the deed through a written notice.
Some More Best Practices to follow
In order to avoid any mishappenings or misuse of the Power of Attorney, it is important to follow some safety measures while making and executing the PoA deed.
- Whether it is General Power of Attorney in India or Special, you have to clearly mention the tasks which the holder/agent is entitled to do. You should avoid giving powers to him/her which are not required at all.
- It would be wise to include an indemnity clause in the deed to protect you from any of the risks or losses arising out of the misdeeds done by the holder.
- In case the Power of Attorney is for buying/selling property in India make sure you make the payment/receive payment in your own NRE/NRO account not in the holder’s bank account.
- Although drafting and executing the Power of Attorney in India for NRIs is not a difficult task but still It would still be wise to take the advice of legal experts while drafting and executing the same to avoid any unnecessary hassles in the future.
Power of attorney is a quite useful estate planning tool to manage Financial and Non-financial transactions where you need not be physically present everywhere. You may transfer your authority to one or more persons to act on your behalf for specific or general purposes. This is more useful for NRIs, however, Indian Residents may also use PoA for some specific purposes.
However, like all other estate planning tools like WILL, Trust, Power of Attorney in India also requires you to be cautious and conscious as it requires the appointment of a third person to take care of some financial and non-financial tasks. Do it carefully. (Also Read: How to make WILL in India- step by step guide)
Please note that this article is for informational purposes only. We are not legal experts. It is advisable to be in touch with one before acting upon anything mentioned here.