By Sheraz Akbar

Sheraz Akbar did his law graduation from Abdul Wali Khan University Mardan. He can be accessed at: 121sherazakbar@gmail.com

Introduction

The power of attorney is capacity, right or a power entrusted upon a person by the law to manage, by his own will directed to that end ,the rights ,duties or liabilities or other legal relations, either of himself or other person. Power is either ability to determine the legal relations of other person or ability to determine its own. The power of attorney is frequently used in the event of a principal’s illness or disability, or when the principal cannot be present to sign necessary legal documents for financial transactions. A power of attorney can end for a number of reasons, such as when the principal dies, the principal revokes it, a court invalidates it, the principal divorces their spouse, who happens to be the agent, or the agent can no longer carry out the outlined responsibilities.

DEFINITIONS:-

Power of attorney documents are legal papers in which an individual designates another person to act on their behalf and make decisions on certain matters on all matters.

OR

A power of attorney is an instrument empowering a specified person or specified persons to act for or in name of the person executing it.

WHAT IS A PRINCIPAL AND AGENT IN POA AND THEIR REQUIRMENTS?

The principal, also called the donor, is the person who appoints someone else to act for him or her. A principal must be sane, and adult.

The person named in a power of attorney to act on principal’s behalf is commonly referred to as agent or attorney-in-fact. An agent can take any action permitted in the document on behalf of principal. Legal requirements for POA are that he must be mentally competent; furthermore he must be acting without any undue influence.  The power of attorney must contain date of execution and must be signed by the principal and two witnesses.

PRINCIPALS AND AGENT LIABLITIEES

PRINCIPALS LIABILITY

In case of directliability, the principal must have approved the agent in some manner to act in his behalf, and that authorization must be communicated to the third party by the principal.Similarly, a principal who is careless in his use of agents will be held liable for their negligence. But in case of vicarious liability, the principle of liability is much broader, extending to acts of which the principal had no knowledge, and he had no intention to commit nor was involved in, and may in fact have expressly prohibited the agent from engaging in wrongful acts. In case of the intentional wrongdoing by the agent the principal holds no liability.

AGENTS LIABILITY

The agent is personally liable for his wrongful acts and must repay the principal for any damages the principal was forced to pay, as long as the principal did not authorize the wrongful conduct. The agent directed to commit a tort remains liable for his own conduct but is not obliged to repay the principal. An agent who apparently make a contract on behalf of a principal, but has no authority to do so, is liable to the other party. An agent will be liable on contracts made in a personal capacity for instance, when the agent personally guarantees repayment of a debt.

DRAFTING POWERS OF ATTORNEY

 A power of attorney can possibly be misused as a tool for exploitation. Careful drafting can create accountability and limit the ability of the agent using a power of attorney to financially utilize the principal. There are six precautions to consider when drafting a financial power of attorney

1) Agent selection; 2) Third party accounting; 3) Limit and define gifting power; 4) Second signatures; 5) Limit authority; and 6) Power to revoke

Agent selection. The most important step in commuting the possibility of exploitation is cautious selection of the agent. It is necessary to name a trustworthy and reliable agent. The agent must be able to help the principal in decision making and commit to making decisions that manifests the values and objectives of the principal.

Third party accounting. Recruit a trusted third party to do accounting, observation and ensure transparency. Powers of attorney normally have no monitoring or oversight after the principal loses capacity. Having a second set of eyes on the money provides a minimum amount of transparency. Accountings need not be professional but should at least record the dates, nature, and amount of all financial transactions. Online access for copies of bank and credit card statements to be sent to the third party can be arranged by the principal.

Limit authority.

 It is important to define the limits to account changes and these limits should be drafted into documents because sometime misuse of power is discovered after death of the principal e.g. change of name of the beneficiary on life insurance, adding or increasing rights of survivorship etc.

Limit and define gifting power.

The power of attorney should clearly define and limit on any gifting authority. The draft should describe the circumstances under which gifts would be made as gifting money and property through POA in may be severely exploited.

Power to revoke

A definitive oversight insurance is allowing a third party the ability to repudiate the power of attorney, if up to third party it is being utilized negatively, disregard or endeavor the principal. Frequently, misuse starts when the principal has a restricted or no capacity to protest. Halting misuse utilizing an intensity of attorney can be tedious if this authority is not made in the document.

SECOND SIGNATURES

A standard power of attorney should require a second signature on specific transaction. It is irksome to require two signatures to pay the bills, but larger transaction, for example, the sale of land, or vehicles, can without much of a stretch be utilized to misuse. The power of attorney can characterize exchanges, either by type, or by amount that require a second signature.

IMPORTANCE OF POWER OF ATTORNEY

Assigning a POA can be a practical way to manage your estate and other resources. It can prove essentially useful under the event of a transient sickeness; when one is not be able to handle his estate affairs in their entirety. In these circumstancesthe attorney becomes responsible for managing pending affairs. In the circumstances where a person is rendered intellectually unequipped for managing his own affairs, the attorney has the authority to take legal, financial or estate related decisions on his behalf; thus, it is a practical decision to appoint a power of attorney. Appointing an attorney is also safe as attorney is bound by the law to account for the expenditure of principal’s capital and other assets in case of any damage caused by the negligent act of the agent. For insuring serenity and for security of one’s family and assets it is vital that one should take prudent steps in the appointment of attorney which ensures that in the event that something transpires, in the late or not so distant future, you have trusted a person POA to do your desires as and when the need emerges.

Specimen of Power of Attorney, Page 1 of 2

Specimen of Power of Attorney, Page 2 of 2

CONCLUSION

The power of attorney is an action towards the welfare of the people in the obtaining of justice or helping the concern party. Through the power of attorney the power of appearing in the court or in any other matter is transferred to the agent where the agent performs all the responsibilities of the principle. 

References

[1]  https://www.legalnature.com/guides/the-basics-power-of-attorne

[2]   https://www.araglegal.com/individuals/learning-center/topics/planning-your-legacy/importance-of-power-of-attorney

[3] https://2012books.lardbucket.org/books/the-legal-environment-and-business-law executive-mba-edition/s15-liability-of-principal-and-age.html

[4] https://www.jdsupra.com/legalnews/drafting-a-power-of-attorney-that-76715/

[5] https://www.myazbar.org/AZAttorney/Archives/Dec98/12-98a1.htm

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