Vakalatnama & Power of Attorney: Everything you should Know
If you decide to hire a lawyer, signing a Vakalatnama or a Power of Attorney is the first legal exercise you will do to start a legal fight for your rights. Vakalatnama, as well as a Power of Attorney, are legally recognized tools to assign the privilege of defending your rights to a lawyer in a judicial or quasi-judicial setting. However, both are different from each other. If you have decided to hire a lawyer or need one, then it is crucial that you know the meaning of both these terms before you sign on a legal paper claiming to be a Vakalatnama or a Power of Attorney!
What is a Vakalatnama or a Power of Attorney?
A Vakalatnama or a Power of Attorney is a legal document. It creates a relationship similar to that of a principal and agent. This means that a lawyer for whom you sign a Vakalatnama has the power to make any decisions on your behalf in a court of law. This is a serious responsibility and therefore cannot be assigned without proper thinking and formalities. Signing a Vakalatnama or a Power of Attorney means that you have assigned the privilege of decision-making as well as defending your claim/rights to a certain person. As per Section 2(u) of Advocates’ Welfare Funds Act, 2001, “Vakalatnama” includes a memorandum of appearance or any other document by which an advocate is empowered to appear or plead before any court, tribunal, or other authority However, such responsibility and power only extend to making decisions which are legal in nature and related to your legal dispute. We will look at this later in the article.
A Power of An attorney is a more broad term, and Vakalatnama is only one type of Power of Attorney. In India, all forms of legal documents that fall under the category of Power of Attorney are governed by The Power of Attorney Act, 1882. Section 1A of this act defines Power of Attorney as a Legal Document authorizing any person to represent or act on behalf of the person executing it. It should be noted here that the act doesn’t define the term Vakalatnama. Vakalatnama is also referred to as a Memorandum of Appearance.
Is it mandatory to sign a Vakalatnama?
As mentioned earlier, a Vakalatnama creates a relationship between the Principal and Agent between the client and the lawyer. It is important to understand the meaning of these words in order to decide if signing a Vakalatnama is mandatory.
Here, the client, that is, the person who hires a lawyer is in the position of a Principal. The lawyer is in the position of an agent. An agent has the responsibility to complete the work for which he/she is hired. Such responsibility comes with the power to take decisions in order to complete the work properly. Any decision taken by the agent while working in the capacity assigned to him by the Principal is considered to be taken by the Principal himself. Thus, in a judicial set-up, this would mean that all decisions made by your lawyer while representing you in a court of law are considered as your decisions. The Lawyer cannot be held liable for any legal decision that did not yield a result to the client’s satisfaction.
The burden of responsibility that you place on your advocate to take legal decisions on your behalf can have serious consequences for you. Such responsibility should be assigned after proper after-thought only. Signing a Vakalatnama is therefore mandatory and any decision taken by a lawyer on your behalf without first signing a Vakalatnama has no legal consequences.
Can you sign a Vakalatnama for someone other than a lawyer/advocate?
Ideally, a Vakalatnama is signed only for a lawyer. A lawyer or advocate is a person who has the license to practice law in a court of law. An advocate must be registered and holding a proper license as per the Bar Council of India rules and regulations. Every lawyer who has a license to practice is given an enrolment number after clearing a pan-India examination (called as All India Bar Examination) and performing other obligations and formalities.
A Power-of-Attorney can be assigned to any person who may or may not be a lawyer. A Power of Attorney assigns the right to act as an attorney on your behalf to a certain person. Such a person can take a variety of decisions on your behalf and also be a care-taker of your properties or trust. Such a person can also sign a Vakalatnama on your behalf. For example, a guardian of a minor or a mentally disabled individual can sign a Vakalatnama on his behalf. In this sense, he acts as a person holding power of attorney on behalf of the minor or mentally disabled individual.
What Rights are assigned to a Lawyer under Vakalatnama?
Signing a Vakalatnama doesn’t give absolute rights to make decisions on your behalf to the Lawyer. The scope of the responsibility only extends to taking decisions that are legal in nature and connected with the dispute at hand. The scope of these decisions is usually mentioned in the Vakalatnama itself. You must read it before signing a Vakalatnama.
Can you Revoke a Vakalatnama?
Any Vakalatnama can be revoked and assigned to another Lawyer during a case or dispute is going on. The process for the same is easy and similar to signing a Vakalatnama itself. You can simply buy a stamp-paper to revoke Vakalatnama and sign it. Both the client as well as the lawyer can initiate the process to revoke a Vakalatnama.