Power of Attorney
By
Jay Chauhan and Deepa Negandhi
Power's
of Attorney are commonly used for authorizing someone else to carry out
what you cannot do yourself. Such authority granted to another person can
be for health and personal care or for property. Under the current law the
Power of Attorney can also be enduring and can be effective even after one
becomes mentally incapable.
Since
the Power of Attorney gives authority to another person to do what you can
do yourself, including signing your name on a bank account, it has
potential for misuse or fraud.
Who
should be appointed an Attorney?
The
choice of "Attorney" should be made with extreme care. It is
preferable to appoint someone who is a close relative or friend and well
trusted. One can appoint more than one person but is usually preferable to
have the same person carry out the duties to minimize the complications.
The person appointed for concerns of health could be different from the
person appointed for property.
Two
types of Power of Attorney
There
are two types of powers of attorney. They are made under the Power of
Attorney Act, and the Substitute Decisions Act, 1992. The first one deals
with property and finances. This type of Power of Attorney is useful if
you are not able to carry out some procedure such as a sale of property in
another country or if you cannot move.
The
second type of Power of Attorney deals with your health and is helpful
when you cannot mentally or physically make decisions on issues such as
health care, accommodation, safety, nutrition, hygiene and clothing and
even pulling the plug in your life support system.
Continuing
Power of Attorney
If
you want the Power of Attorney to continue when you are no longer able to
make decisions, you should have a clause in the Power of Attorney that
states that. Once you are disabled you cannot change the Power of
Attorney. If there is a dispute as to whether you are disabled or not you
can refer the matter to the government appointed person who can validate
the Power of Attorney and confirm your ability or disability.
It
is possible to write a clause in the Power of Attorney which enables the
Power of Attorney to come into effect only upon your becoming disabled. In
such a case the Power of Attorney comes into effect only upon your
commencing disability.
What
is an 'Attorney'?
Attorney
does not refer to a lawyer. In the case of Power of Attorney it is a
person you appoint to carry out your duties. It is important to seek
permission from that person and advise him that he or she is being
appointed to act as an attorney. The name of the lawyer where the Power of
Attorney is prepared should be given to that person along with a copy of
that Power of Attorney.
Signing
The
legal requirement is that two persons witness and sign the Power of
Attorney when the person making it is signing. The formality is similar to
that of preparing a will. It is advisable to do this in the office of a
lawyer who can explain the Power of Attorney and ensure that the signing
is properly done. The lawyer will keep a copy of the Power of Attorney and
he can also prepare a Notarized Copy if required.
Age
For
the Property Type Power of Attorney the attorney must be at least 18 years
of age, and for the Personal Care type the attorney can be 16 years or
older. It is not advisable to appoint a very young person for the Power of
Attorney. Trust worthiness and ability to exercise proper judgment in
difficult situation is important for an attorney.
Revocation
The
termination of Power of Attorney is not done as often as it should be. If
there is not a question of enduring Power of Attorney for an older person,
once the work is done by the attorney his Power of Attorney should be
terminated. This is done with the same formality of two witnesses as the
starting of the Power of Attorney. The termination should be brought to
the attention of the original person you appointed as an attorney.
Living
Will
Since
a Power of Attorney give the person appointed as an attorney to carry out
any sale or disposition of property, it is also referred to as a living
will. It is not usual for the Power of Attorney to designate
beneficiaries. This should be done by preparing a will. Power of Attorney
is effective only during the life time of a person and the will takes
effect upon the demise of the person.
