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How to Get Power of Attorney at the Consulate. Why It Is Necessary?

Contributed by:Sudhir Pai, CPA, FCA, EA, CGMA

What is a Power of Attorney?

It is likely that people who have an immovable property in India feel the need to give the power of attorney to someone in India to take care of all the affairs related to the property. Businessmen and industrialists living in the U.S. often have to make decisions that affect operations in India. To solve the problems faced in day-to-day operations, people often delegate their functions to a third party (a family member, business partner, employee, etc). The third party performs functions on their behalf. A power of attorney is a legal document that explains this arrangement between the two parties and gives legal permission for the delegated person to handle the matters.

Who are the Principal and Agent?

As the person who is empowering another to act on your behalf, you are the principal and the other person to whom you delegate the matters is the agent in this situation. You should only give a power of attorney when there is an absolute need to do so. The agent will act for you and his actions will have legally binding implications for you.

Types of Power of Attorney

There are two types of power of attorney:

  • General Power of Attorney - A general power of attorney is usually a document that allows an agent to act on behalf of his principal for more than one matter.  There is no expiration date on a general power of attorney unless otherwise specified.
  • Special Power of Attorney - A special power of attorney is created to give an agent power to complete a specific job. The power of attorney ceases to apply once the job is complete. For example, you may give a power of attorney to your relative to sell a piece of land in Bangalore or purchase an apartment in Mysore. The specific power of attorney expires once the transaction is complete.

Is it Possible to Revoke a Power of Attorney?

Yes, you can revoke a power of attorney in the following cases:

  • As a principal, you can revoke the power of attorney for any reason.
  • You and the agent may mutually agree to revoke the power of attorney as well.
  • You and the agent may mutually agree to revoke the power of attorney once the intention of giving the power of attorney is complete.
  • The power of attorney is automatically revoked in the event of death, bankruptcy, and insanity of the principal.

Why is a Power of Attorney Created?

A power of attorney can be created for empowering the agent for:

  • Financial matters.
  • Property related matters.
  • Commercial or company matters.

Obtaining a power of attorney requires two processes for property and financial matters.

  1. You have to get the power of attorney notarized.
  2. You have to send the power of attorney duly notarized and apostilled to the Indian Consulate near you.

What is Apostilling?

You have to get the power of attorney apostilled for commercial and company related matters. An apostilled copy is a certificate from the State officials verifying that the notarized copy of the power of attorney is valid. Usually, this is done by the Authentication Division in the State Department. This is necessary only for commercial and business related matters. After the documents have been apostilled, there is no need to get it attested from the Indian Consulate.

How to Get a Power of Attorny: Steps for Creating a Power of Attorney

STEP 1: Write the power of attorney on plain paper. There is no need to create it on stamp paper from India, subject to conditions. Once you have written the power of attorney, be sure to complete the following.

  • Please apply strictly as per your jurisdiction for which you have a verifiable proof of address.
  • Sign the power of attorney. Two witnesses should also sign this document. The addresses of the applicant and witnesses should be typed clearly. All this must be done in the presence of a notary public.
  • You can also get this done at the Indian Consulate. All post offices and banks have a public notary too.
  • A free notary is available at the library of most towns. Paid notaries are available at USPS offices/shops as well.

STEP 2: Necesary Only for Commercial And Company Matters.

Send a request for an apostille to the Secretary of State. The Department of State, Authentications Office is responsible for signing and issuing certificates under the Seal of the U.S. Department of State (22 CFR, Part 131. The goal is to provide authentication services to U.S. citizens and foreign nationals (e.g. Indians) on documents such as a power of attorney that will be used overseas.

STEP 3: For All Matters Related to Property and Finances.

Send the document to the Indian Consulate. If you are submitting the documents in person, you can sign it in the presence of the officer at the Consulate. You should carry your passport as well.

The attestation service at any Indian Consulate is provided for Indian citizens only. See Statement 1 for the list of documents required as proff for attestation of POA.

There is one exception. Documents submitted by applicants of other nationalities will be attested only if there is an 'India' connection. This means that the applicant wants to give this document for a transaction in India or it originates from India.

STEP 4: Pay the fee at the Consulate. The fee of attestation is as follows:

  • Non-refundable $20 for each attestation.
  • Non-refundable $10 for attestation of each photograph.
  • Fees should be paid through money order or cashiers' cheque drawn in favor of the ‘Consulate General of India, [City of Consulate].’
  • Personal checks, credit cards or other banking instruments are not accepted. Debit cards are accepted with an additional service fee.

STEP 5: Once your power of attorney is attested by the Indian Consulate/Embassy, you can send it to India.

The attested power of attorney that is sent to India should be ‘Registered’ in India.  Once registered, the process is complete and legal and it is ready to be used.

A power of attorney must be wisely created and given to a trustworthy person. The agent must also be very cautious before accepting a power of attorney. A poorly drafted power of attorney may become a bone of contention between the affected parties.

STATEMENT 1 – DOCUMENTARY PROOF REQUIRED FOR ATTESTATION OF POWER OF ATTORNEY

  • Original passport and copies of all non-blank pages including first and last page.
  • Copy of address proof in USA – 1 document showing proof of address is required. It could be a bank statement, driving license, utility bill, home lease agreement, etc.
  • Valid visa copy – H1, H4, L1, etc. – Remember B1/B2 is not considered valid for creating a power of attorney.
  • Original visa petition approval notice.
  • Original I-94 Form and copies – In case of electronic I-94, just take the print-out with you.
  • 2 passport size photographs to be affixed against your name on the power of attorney.

NOTE: It is advised to carry the original version of the documents with you for verification in case the Consulate asks you to provide it.

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