A power of attorney (POA) is a legal document delegating a person with the power to act for another person. The person who delegates the power is known as the principal whereas the person to whom the power is delegated is regarded as attorney-in-fact. Normally, a POA is used in a situation in which the principal is not able to be present in person due to any reason to sign the necessary documents.
Today, we will explain to you everything you need to know about legal provisions of the power of attorney.
Types of attorney
The Civil Procedure (Code), 2017 recognises two types of attorney:
- Ordinary POA and
- Authorised POA
Qualification of the person to be nominated as an attorney
Section 145 of Civil Procedure (Code), 2017 lists out the qualification of a person who can be nominated as an attorney.
The criteria are listed below:
- One who is competent to conclude a contract in accordance with law
- One who is not a defaulter of payment of a claimed government amount according to a judgment, any such fee, court fee as required to be paid to the court for the execution of judgment or any fine or penalty imposed by the court
- One who is not convicted for forgery, fraud, corruption or offence involving moral turpitude
However, any aforementioned conditions shall not prevent any person from appointing anyone of his or her joint family member as his or her attorney.
Appointment of attorney by parties
Section 147 of Civil Procedure (Code), 2017, states that a person may become an attorney in more than one case at the same time or be appointed by more than one person as an attorney in the same case. However, the same person shall not be eligible for being appointed as attorney of both parties who are opposed to each other in any case at the same time.
More to this, section 149 of the code provides that a person who has been appointed as an attorney in a case sub judice in one court may be appointed as an attorney in another case sub judice in another court.
Power of attorney
The powers of attorney are as set forth in the POA document executed at the time of his or her appointment as mentioned in section 150 of the code.
However, the right to immovable property may be transferred through an authorised attorney only and cannot be done through a general attorney. A person can sell or dispose of, or exchange or execute a deed of gift with immediate effect or otherwise transfer any immovable property by appointing an authorised attorney setting out the reasonable ground for his or his inability to appear in person.
Provision relating to authorised POA
A person may appoint any person as an authorised attorney by executing a POA to file a case, submit a statement of defence, withdraw the case or carry out mediation or carry out other legal action on his or her behalf, with or without specifying any case. While appointing an authorised attorney, the person appointing the attorney shall affix signature and thumb impression on the POA in presence of, and have it authenticated by, a judge of any district court if the power of attorney is executed within Nepal, and any Nepali ambassador or consul general if it is executed in a foreign country.
Further, a person who wishes to have a power of attorney authenticated, such person shall affix a photograph of him or her and of the attorney to be appointed unto the POA, and submit copies of the citizenship certificates or passports of both of them to the district judge or Nepali embassy or consulate-general. A fee of Rs 5,000 shall be charged for the authentication of a POA if to be executed in Nepal.
Additional to this, section 154 of the code allows a person who is not able to appear in the concerned office in order to sell or dispose of, or exchange or execute a deed of gift with immediate effect or otherwise transfer any immovable property in which he or she has right and ownership or to execute any deed required to be registered pursuant to law to sell, dispose of, exchange or execute a deed of gift with immediate effect or otherwise transfer such property or execute such a deed by appointing an authorised attorney by executing the POA, setting out the reasonable ground for his or his inability to appear in person.
Termination of the authorised attorney status
The status of an authorised attorney shall reasonably be terminated in any of the following circumstances:
- If the power of authorised attorney specifies any certain act, purpose and period and such act, purpose or period gets completed or expired
- If the power of authorised attorney is so executed that it will cease to exist after the completion or termination of any specific event or circumstance and such an event or circumstance gets completed or does not exist
- If the person appointing the attorney voids the power of attorney by publishing a notice in any two national daily newspapers
- If the person appointing the attorney or the attorney dies prior to the completion of the act referred to in the power of attorney
- If the concerned person appears in person and transfers or exchanges the right in the property intended to be transferred or exchanged through attorney
- If a case is filed in a court between the person appointing the attorney and the attorney or a person of his or her joint family in relation to the property referred to in the power of attorney
- If any case is filed in a court between the person appointing the authorised attorney and the attorney
- If the authorised attorney gives the person appointing him or her information in writing expressing his or her unwillingness to act in such a capacity, accompanied by the original copy of the power of authorised attorney.