Difference between Power of Attorney and Will?

will and power of attorney

Power of attorney:

As defined under Section 1A of the Power of Attorney Act, 1982 power of attorney means any instrument which empowers any specific individual to act on behalf of the name of the person executing such instrument. It is a document that gives authority to an individual who is called as donee or the attorney holder to carry out the wishes of the person who is making such an instrument who is called as a principal in general.

Power of attorney can be made by persons who are residing in foreign country but have legal or financial proceedings in India or by any person who is ill or unable to perform certain duties due to their health conditions.

Power of attorney is of two types:

1) General Power of Attorney

2) Specific power of attorney

When a Power of attorney does lose its power?

  • Upon the stated expiration date, the Power of Attorney ceases to exist.
  • When the principal revokes the powers given to the donee as given through POA deed.
  • When the principal dies the Power of Attorney ceases to exist.

Power of attorney after the death of the principal:

The power of attorney will be revoked after the death of the principal and it becomes. Any person appointed as the agent will not be able to exercise any powers on behalf of the principal.

Principal leaves no will but POA is present:

When a person dies without leaving any will but the properties are controlled by the Power of Attorney, then the court will appoint an administrator to settle the estate when the deceased has not left any will. The transfer of the ownership of the property will pass through probate and it will be according to the state law and not according to the wishes of the principal.

Relationship between the Attorney holder and the Principal:

The relationship in between the principal and the attorney holder is that of principal and agent as defined under Indian Contract Act, 1872. The principal will be held liable for the acts of the attorney holder when any act is done within the powers given to the attorney holder by the principal. However principal cannot be held liable for the acts of agent which has been done outside the scope of powers conferred to him.

However the relationship in between the testator and executor is not the same. The executor can manage the affairs of the estate only after the death of the testator. He has no power over the estate during the lifetime of the testator.

Discrepancies between Will and Power of Attorney:

Both will and power of attorney are legal documents which convey the desire of the person who is creating such a document to another person whom they wish to execute and fulfil such wishes. When the distinctions in between these documents are clearly understood, no confusion arises. Will confers a greater power to the executor regarding the administration of the estate and such powers are not narrow. In the case of Power of Attorney, the agent is provided with only limited powers and he cannot act beyond such powers. At the death of the principal the instrument loses its significance.

Will:

The laws regarding to the Wills are governed by the Indian Succession Act, 1925. Under section 2 (h) of the Act, will means any legal declaration of the testator with respect to his property which he wishes to carry on after his death.[i] Will is a testamentary document that expresses the wishes of the testator i.e.) the person who is making such a will. The will directs the way in which the estate has to be managed after his death. Any person who is making a will is called as a testator. Will is made by any person who desires to distribute his wealth to the near and dear person after his death.

Any person who is making a will is called as a testator and the person assigned to carry on the administration of the estate is called as the executor. Estate refers to the property or the object of the will that is intended to be transferred in a particular manner.

Both the will and power of attorney are legal documents that gives power to certain person when he

Main differences between will and power of attorney:

  • Main difference is the time span in which the will and power of attorney takes effect. Will executed by the testator takes effect only after the death of the testator. All the powers conferred by the executor cannot be exercised upon the estate during the lifetime of the testator. But the power of attorney can exercise the powers only during the lifetime of the principal. Principal is the person whose renders his powers of administrating the estate to some person who is called donee.  
  • The power of an executor is not limited and he has an authority to manage all the matters relating to the estate. But the powers of the agent with respect to the power of attorney are limited only to those matters that are required to be carried out with respect to the agreement.

Conclusion:

Both Will and power of attorney are legal instruments which confers power to some other person. The time period in which the documents take effect varies.

Edited by Pragash Boopal

Approved & Published – Sakshi Raje

Reference

[i] Section 2 (h) of  the Indian Succession Act, 1925

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This is Shuruthi Jegannathan pursuing BA LLB in Sastra Deemed to be University. My areas of interest include Constitutional Law, Sociology, Criminal Laws and Jurisprudence. I would always love to play the role of the researcher in the moot court competition and has staunch interest in quiz competitions. I work best as a team member and I believe team works bring effective results. I am fond of Indian vegetarian cuisine and I'd love to claim myself as a foodie. I like binge-watching Tv Series. I see myself to be a person who continues to read and write a lot about legal issues in the coming future.