This article is written by Szymon Gorny of 4th Semester of Maastricht University, an intern under Legal Vidhiya
Abstract:
This paper presents a comparative analysis of the General Power of Attorney (GPA) in Poland and India, two diverse countries with distinct legal frameworks and cultural backgrounds. The GPA is a legal instrument that grants authority to an agent to act on behalf of the principal in various legal and financial matters. While the core concept of GPA is similar in both countries, significant differences exist in their legal provisions, requirements, scope of authority, notarization and registration processes, duration, and revocation procedures.
In Poland, the GPA is mainly governed by the Polish Civil Code, with no specific formalities required for execution. Notarization and registration are only obligatory in some cases, but they can also enhance the GPA’s legal validity. The scope of authority can be tailored to suit the principal’s intentions, and the duration can be specified or indefinite. Poland’s GPA holds significant importance in real estate transactions and business dealings, streamlining legal processes for the citizens.
In contrast, India’s GPA is governed by the Indian Contract Act, 1872, with flexibility in execution as a general or special power of attorney. However, there may be variations in different states as to the applicability and requirements of a Power of Attorney. Some states have enacted specific legislation or rules that regulate the execution, registration, and revocation of Powers of Attorney. These state-specific variations should be considered when drafting and executing a Power of Attorney in India.
Notarization is not obligatory but is commonly practiced for added authenticity. Registering GPAs for immovable property transactions is mandatory to ensure enforceability. The scope of authority is customizable, allowing agents to handle specific tasks, and the duration can be defined or open-ended. GPAs are significant in India for property transactions, business dealings, and financial management, providing a crucial legal tool for citizens’ representation.
This analysis highlights the implications of each country’s legal provisions on GPA, emphasizing the importance of ensuring the authority’s legitimacy and safeguarding the interests of both principals and agents. Understanding these comparative aspects can assist legal practitioners and citizens in making informed decisions while using the GPA as a means to delegate authority. The study underscores the significance of GPAs in enhancing legal and financial efficiency, while also acknowledging the potential challenges and complexities that may arise in both Polish and Indian legal systems.
Keywords: General Power of Attorney, Civil code, Indian Contract Act, duration, revocation, legal scope, comparison
Introduction
The General Power of Attorney is a legal document granting another person the right to represent you and act on your behalf. The depth of the legal authority, purely depends on what was agreed upon in the Power of Attorney document including the scope and the timeframe of it. As the concept of the general power of attorney is recognised in all legal systems, it varies from country to country. This paper will specifically compare and contrast the regulations and practices of General Power of Attorney in India and Poland. It will focus on comparing legal framework, scope of authority, duration, revocation and language scope of the general power of attorney in India and Poland, as well as its significance and impact for the societies.
Scope of authority
In Poland the legal basis behind the general power of attorney is the Civil Code. According to Article 99[1] the general power of Attorney needs to be written under pain of nullity[2]. What can be found interesting, is the fact, that according to polish law, the agent needs to have at least limited legal capacity, which means that the minimum age required is 13[3]. In some cases, the agent is required to have professional qualifications – especially when representing the principle in court. Furthermore, Actions that are immoral, illegal or against public policy cannot be included in GPA. Furthermore, the GPA can be given for a certain action e.g conducting real estate transaction, but it can also have broader authority e.g handling all legal or financial matters. The type of the scope needs to be agreed upon and put into writing. In any case, GPA needs to be in compliance with the relevant laws and regulations in Poland.
On the other hand, in India, the general power of attorney is governed by the Indian Contract Act 1872. According to article 187 it can be written or spoken, which is the first major difference between the compared legal systems. Furthermore, in India it is also codified, who can give the general power of attorney – it can be found in Article 183[4], but also who can receive it, which can be found in Article 184[5]. In both cases the person needs to be of the age of majority according to law and be of sound mind. Similarly, as in Poland, aactions that are immoral, illegal or against public policy cannot be included in GPA. GPA needs to comply with Indian Contract Act 1872, as well as any relevant law. In both systems it is vital for both principal and the agent to understand the scope of the GPA. Both in polish and Indian legal systems, if the act is done outside of the scope of the GPA, principal can accept or reject such an act according to article 196[6] in India and article 103 in Poland.
Duration and Revocation
In regards to duration and revocation of the General Power of Attorney, in Poland the duration is specified by the principal. It can be for indefinite period, which means that it will remain valid till being revoked by the principal or has limited time frame, for example till certain point in time or until certain event.
With regards to revocation, according to Article 101[7], the Power of Attorney can be revoked at any time, as well as it is automatically revoked in case of death of one of the parties. However, what is also mentioned in this article, is the fact, that annulment of GPA can be done in any form and doesn’t require the agreement of the agent In case it is revoked, the agent is required to return the written document confirming the power of attorney according to Article 102[8].
In India, unless provided a specified period of duration in the GPA, it is assumed that such a GPA is enduring, which means it will remain valid unless principal revokes it. While revoking it, the principle needs to keep the same form as he gave the GPA in the first place. Till the moment the agent receives the notification of revocation, he can continue representing the principle.
As we can see, the rules regarding duration and revocation are pretty similar in both legal systems, as both of them offer flexibility to the principal in terms of the authority’s timeframe and termination.
Language scope
With regards to the language scope, in both India and Poland the General Power of Attorney is not required to be in any specific language. However, in both countries it might be worth considering the practical side, especially with regards to official and legal transactions. It is vital that both parties are aware of what is included in the document. Furthermore, in some cases certified translation is required to ensure that all parties involved fully understand the content and implications of the document. In some cases, especially for significant transactions or legal matters, the translated version of the GPA may need to be notarized by a notary public to provide additional legal validity and authenticity. On the other hand, in India there is no necessity to have any GPA notarized, hhowever, registering GPAs related to the transfer of immovable property is mandatory under the Indian Registration Act, 1908. It is also important to notice, that in most cases it is commonly practiced for added authenticity.
In conclusion, both countries are flexible regarding the language, however it is always recommended to have an official translation to ensure clarity of both parties and to avoid any issues in the future. Indian legal system is also more lenient as it doesn’t require any GPA to be notarized, when polish legal system requires it from some of the GPAs.
Significance in society
GPA plays crucial role in legal and financial matters both in polish as well as Indian legal systems. It gives people the possibility to be represented by professionals, which allows them for smooth functioning of various aspects of daily life and business transactions.
Furthermore, it is very useful for elderly and vulnerable individuals, as it gives them an opportunity to appoint a trusted agent, who will have their best interest in mind.
As well GPA is used to allow others to represent us in legal matters. It is very useful, as many people do not possess an advanced legal knowledge and this allows them to be properly represented, even if they are not present.
Undoubtedly, it is a vital tool for foreigners and non-resident citizens as it allows them to appoint a representative to act on their behalf, manage their affairs, handle financial transactions, and make legal decisions within the country, even when they are not physically present.
This proves, that GPA has a great social impact and has a vital role in both of the analysed countries. The GPA’s flexibility and customization options make it a practical and valuable legal tool that enhances the smooth functioning of society and commerce in Poland and India.
Conclusion
In conclusion, both legal systems recognise the general power of attorney, however there are visible differences. Both countries provide flexibility in terms of the scope of authority and the language used in GPAs. Notarization and registration requirements vary, and while not mandatory, they can offer additional legal validity and protection. GPAs play a crucial role in both societies, empowering individuals to delegate authority and handle legal and financial matters efficiently, making them an essential legal instrument in both legal systems.
[1] Article 99, Polish Civil Code
[2] https://arslege.pl/kodeks-cywilny/k9/s1955/
[3] https://www.biznes.gov.pl/pl/portal/0089
[4] Ss. 183, The Indian Contract Act, 1872
[5] Ss. 184, The Indian Contract Act, 1872
[6] Ss. 196, The Indian Contract Act, 1872
[7] Article 101, Polish Civil Code
[8] Article 102, Polish Civil Code
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