Attorney means that natural person who does any legal work or represents in the Court or office on behalf of other person. Attorney here is not to be confused with Attorney in US Legal system where Attorney means lawyer.
What is Power of Attorney?
A power of attorney (“POA”) is a legal document which gives one person (called as the agent or attorney-in-fact) the power to act for another person (called as the principal). Depending upon the content of the POA, the agent can have broad legal authority or limited authority to make legal decisions about the principal’s property, finances and procedural obligations. POA is used in the event of a principal’s illness or disability, or when the principal can’t be present to sign necessary legal documents for financial transactions or for legal compliances.
In what situations can one appoint Attorney?
One can appoint attorney in any situations where the law does not require them to be present in person.
For instance, one can appoint attorney on their behalf to register the case, to present on the date of appearance, in execution of judgement, etc. In corporate matters, the company may appoint an authorized representative to sign the documents on their behalf. The company may also authorize the attorney to submit the documents of the company to concerned governmental body to fulfill their compliances such as submission of application, processing of the documents, annual reports etc. to the Office of the Company Registrar (OCR), receive updated certificate from them, to file for divorce, etc. A foreign company may appoint a person residing in Nepal as its authorized representative for the purposes of the service of any summons or notice or authorizing such person to receive any other lawful notices on a lawsuit or legal action instituted on behalf or against the company .
However, in certain circumstances requires the principal to be present in person and thus power of attorney would not work. For example, to register marriage, to verify the selling of shares at OCR, to execute a deed of gift with testamentary effect etc.
Who can appoint Power of Attorney?
Any person, natural or legal, who is a party to a case or is undergoing some legal proceedings, may appoint a representative to perform any act related to the case in the court or for any specific act referred in the POA itself, on his or her behalf.
Who can be appointed as Attorney?
The agent need not necessarily be a lawyer. Although lawyers are given POA often for they are aware about the legal proceedings to be done as well as visit the court almost on a daily basis. A person may appoint any trusted friend, family member or acquaintance to be their agent.
To be appointed as an attorney, following criteria’s must be fulfilled;
- Must not be below 18 years
- Must be mentally sound
- 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,
- Not convicted for forgery, fraud, corruption or offence involving moral turpitude.
Provided that nothing contained in this clause shall prevent any person from appointing any one of his or her joint family as his or her attorney.
Types of Power of Attorney
Nepal recognizes two kinds of POA. They are;
- General POA and;
- Authorised POA
What are the powers of Attorney?
The powers of attorney are as set forth in Power of Attorney executed at the time of his or her appointment. However, right in immovable property may be transferred through authorized attorney only and cannot be done via 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 authorized attorney setting out the reasonable ground for his or his inability to appear in person.
Procedure to appoint attorney
General Attorney can be appointed by simply making the deed of power of attorney. Both the principal and the attorney need to sign on it. The attorney can simply show the POA while executing the task authorized by the POA. A company may appoint attorney by the decision of the members of the Board of Directors for a certain task. The executor shall affix his or her signature or thumb impression on the power of attorney
Appointing authorized POA is a whole different process.
Authorised POA can be appointed by executing a general power of attorney without specifying any case, the person appointing the attorney shall affix signature and thumb impression on the power of attorney 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. It shall be prepared by a registered advocate in Nepal. It shall also be witnessed by at least two witnesses, and contain identification of such witnesses and its writer and also bear their signature or thumb impression.
The principal shall affix a photograph of him or her and of the attorney to be appointed unto the power of attorney, 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 five hundred rupees shall be charged for the authentication of a power of attorney. The court shall register such a power of attorney.
For general POA, one may simply execute the POA in a prescribed format.
For appointing authorized attorney, additional documents are needed fore verification. For example, the Embassy of Nepal in Qatar demands the following documents to execute authorized POA;
- Dully filled up application by her/him self
- Power of Attorney in specified format (Two original copies)
- Nepali Citizenship Card (Original and Copy)
- Passport (Copy)
- Valid Qatari ID (Copy)
- Invoice of revenue paid for the current fiscal year and photocopy of Land Ownership Certificate, if so related.
- Document verifying relationship, if delegating to a relative.
- Nepali Citizenship Card of the person to whom the PoA is to be delegated (Copy)
How is the POA terminated?
A power of attorney can end for a number of reasons, such as when the principal dies, the principal revokes it, a court invalidates it, when agent can no longer carry out the outlined responsibilities or when the act specified in the POA gets completed or simply when the principal changes the attorney for the same task or by executing a decision to that effect.
Authorised POA is terminated in the following situations;
- Completion of the specified act or purpose or expiration of period
- If the power of authorized 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 attorney voids the power of attorney by publishing a notice in any two national daily newspapers,
- If the person appointing 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 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 authorized attorney and the attorney,
- If the authorized 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 authorized at.
Can one person hold the power of Attorney for multiple people?
Yes. 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.
Provided that a person shall not be eligible of being appointed as attorney of both party and opponent party in any case at the same time.