Last updated on April 22nd, 2022
In the current pandemic situation where international travel is pretty much banned, if you have a property in India that you want to sell, creating a power of attorney is your only option. Notwithstanding the current situation, the Power of attorney is still a useful and powerful tool. It costs a lot less and needs very little work to create rather than travelling overseas to sell a property. In this article, I will recount my experience of creating a Power of Attorney from Australia for selling the house in India.
The need for a Power of Attorney?
In the pre-covid time, my wife and I planned to visit India and sell our flat in an affluent neighbourhood of Pune. Unfortunately, when the Covid started spreading its roots worldwide and especially in India, it soon smashed all those hopes. Pretty soon, it became clear that international travel was going to be a distant dream. Things were still manageable as I rented my flat.
But as Covid started wreaking havoc in India and Government started imposing lockdowns, people started to flee to their hometowns. Many people couldn’t afford rent anymore as they partially or fully lost their income. Others found the more convenient option of working from home and saving the rent. As a result, the rental market dried up and it started becoming harder to maintain the property.
So we started looking at our options and the only thing which made sense was to sell the property. But how? Given that we couldn’t travel to India and couldn’t wait indefinitely till the pandemic was over.
I started looking for answers and found one – creating a Power of Attorney.
What is a Power Of Attorney?
Back in my childhood days, my first introduction to the Power of Attorney (and its evils!) was from the movie Baazigar. It was amazing to see how such a simple document caused the destruction of two families. Alas, real life is not always as spicy as a reel-life.
Anyway, what exactly is the Power of Attorney?
According to Wikipedia, a power of attorney (POA) or letter of attorney is a written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter. The person authorising the other is called the principal or the donor, whereas the person authorised to act is called the agent or the donee.
There are two main types of Power of Attorney – General and Special (also called Limited) Power of Attorney. The General Power of Attorney is like signing a blank cheque i.e. you are giving complete control of all your matters to the agent. A Special Power of Attorney, on the other hand, limits the authority to only specific events or matters defined in the document. Which type of PoA you want to use is totally up to you, however, in my opinion, a Special Power of Attorney is a much safer option.
Initially, I was a bit hesitant from what I read in online forums and got the impression that as an NRI using a Power of Attorney to sell the property is illegal. However, that’s not the case. If you are following the due process and not using PoA to evade stamp duty, it is permitted. Some of my friends who sold properties from Australia through PoA confirmed this.
Steps to create Power Of Attorney in Australia
Here are the broad steps I took to create Power of Attorney.
- Prepare a draft of the Power of Attorney
- Notarise the Power of Attorney
- Legalisation or Apostille from DFAT (applicable only if you are an Australian citizen)
- Send Power of Attorney to VFS for attestation
- Send Power of Attorney to India for further formalities
Let’s look at each of them in detail.
1. Prepare a draft of the Power of Attorney
Cost: INR 6,000
Time: 2 weeks
Since it is a legal document, it is advisable to contact a lawyer in India to prepare a draft version of it. You can find many free templates online, including my version from the Downloads section. However, it is better to involve a lawyer for two reasons.
Firstly, you may want to include or omit certain clauses depending on your situation. Also, the content of the Power of Attorney can slightly vary from state to state. So it is a good idea to contact a local lawyer to prepare one based on local requirements.
Secondly, you will need a lawyer later to put the Power of Attorney on a stamp paper, so why not involve them from the start itself? Plus, when you involve a lawyer, you will have a piece of mind.
In our case, we had to make a joint Power of Attorney as the flat is jointly owned by me and my wife. Hence, I contacted a lawyer who sent me a draft version of PoA over email. We had to go back and forth with multiple corrections until it was ready to my liking.
2. Notarise the Power of Attorney
Time: 2 weeks
Once the draft was printed and we affixed our photos, the next thing was to submit the Power of Attorney to the VFS for attestation by the Indian Consulate.
As per the Document Attestation checklist on VFS, the document i.e. Power of Attorney can be attested by either Justice of the Peace or Notary for everyone except NSW residents. For some unknown reason, NSW residents must only notarise the document.
Being a Melburnian, I had the option of using either JP or Notary attestation. However, in my case, there was another twist – I was an Australian citizen.
VFS states that if you are a foreign national i.e., not an Indian citizen, the Power of Attorney must be apostilled by the DFAT. DFAT in turn can only apostille the document if it is notarised.
If you want to prepare Power of Attorney, do it before becoming an Australian citizen – you will save money and time.
So we booked an appointment with an attorney who was also a notary officer. He checked our driving licenses to confirm our identity and then asked us to sign all the pages of the Power of Attorney. The attorney and his staff member signed as a witness on all those pages. Just before putting our thumb impressions on the last page, I vaguely remembered that our Indian lawyer had mentioned doing all the signatures and thumb impressions in the blue link only. Quickly, I checked my mail and sure enough, that’s what he had asked. However, all the signatures we did were in black ink. Knowing how fussy, Indian officials are about these types of minor things, I knew I couldn’t take chance with black ink.
Redoing the signatures in blue ink was not a problem as I had carried an extra copy of Power of Attorney to account for such a mistake. However, the Attorney’s office didn’t have a blue stamp pad. Unfortunately, I didn’t anticipate this. I quickly ran to the nearby Officeworks but to no avail. All the blue stamp pads were out of stock!
Notaries in Australia usually only have black stamp pad. It’s better to check if they have blue stamp pad before making an appointment to avoid embarrassment later.
So the attorney asked us to book another appointment as there was no point doing it without blue ink. I ordered a blue stamp pad from Amazon. Once I had it, we visited Attorney’s office again to get the signatures and left thumb impressions, all in the blue ink this time. The attorney then put the notary seal on the last page and it was finally ready for the next step.
3. Apostillation by DFAT
Time: 6 days
Cost: $85 + postage
Once notarised, the attorney gave us the document legalisation request form (which can also be downloaded from the SmartTraveller website). The form is pretty straightforward. You need to enter your details (only one of the applicants in case of jointly owned documents), type of document i.e. Power of Attorney, how many copies do you want to be apostilled and your debit or credit card details. Even though the form asks for credit card details, if you have MasterCard or Visa debit card, you can safely use that too.
You also need to specify how you want the apostilled document back. The easiest option is to provide a self-addressed and AusPost stamped envelope when sending the document for apostille. Apart from this form, the only thing that you need to send is the document itself i.e. notarised Power of Attorney.
After sending the form, I realised that by mistake, I signed in blue ink although the form mentioned using a black pen. I filled the rest of the form directly by editing the pdf, so that was not an issue there but I was worried that the signature in the blue ink might land me in a trouble. But the arrow had left the bow so nothing much I could do about it.
Thankfully, the DFAT office was not fussy about it and I got the apostilled Power of Attorney back in just 6 days.
4. Sending the Power Of Attorney to the VFS
Time: 7 days
Cost: $58.87 + one-way postage
Now that I had the apostilled Power of Attorney, the next step was to send it to the VFS for attestation. According to the document attestation checklist by VFS, the following documents need to be submitted:
- Duly filled Miscellaneous Services form
Since the Power of Attorney was co-signed, we filled out two miscellaneous services forms, one for each applicant. Also, as per the instructions on the form, we affixed a passport size photo on each of our applications and signed with half the signature on the form and the rest on the photo.
- Original Indian passport(s)
I was a bit hesitant about this so I called VFS. However, the guy on the phone was adamant that they needed an original Indian passport and that a certified copy of the passport won’t work. So we had to provide an original Indian passport for both of us.
- Copy of valid passports attested by JP (Notarised copies for NSW residents, sorry folks VFS doesn’t trust your JPs).
It was a little confusing. As both I and my wife are Australian citizens, I didn’t know whether to provide a copy of the Indian or the Australian passport. However, given that they asked for our Indian passports, it only made sense to give them a copy of our Indian passports. So we provided JP certified copies of our Indian passports.
- Notarised or Apostilled Power of Attorney document.
You need to mention your Indian passport number under your signature on the PoA and the signature, full name and passport number should exactly match your Indian passport details.
- One passport-size photograph
Though we had affixed the photograph on the Miscellaneous Services form, we still provided an extra photograph for each of us. When we got our certified PoA back later from the VFS, they returned these photos indicating that they were extra and not needed. Nonetheless, more is better.
- Signed Document Attestation checklist
Both my wife and I signed the checklist and also provided our Indian passport numbers on the second page of the checklist. Another confusing point came here. On the checklist, it was mentioned that “Debit cards are not accepted for postal applications“. It was a strange statement given that everyone doesn’t have a credit card. But after a call with VFS, it became clear that the checklist was not updated and they indeed accept Mastercard or Visa debit cards for postal applications. So I filled in the debit card details and signed it.
You can provide MasterCard or Visa debit card details in the credit card authorisation section of the Document Attestation checklist if you are sending documents via post, even though mentioned otherwise.
Next, I went to the local post office and sent the document set to the VFS Melbourne via Express Post. I was worried that the VFS might ask me for some more documents. Gladly my fears were unfounded and I received the VFS attested Power of Attorney within a week.
A word about the VFS SMS facility – it’s not worth the money. I got a couple of messages about the processing of the application and dispatch of the parcel, however, didn’t receive any tracking number. Plus, I didn’t opt for SMS service because I didn’t find a way to opt for it in the application. However, VFS, on its own, decided to opt for it and charge me. Not fair!
5. Sending the Power Of Attorney to India
Time: 5 days
Now that all the formalities were done, I sent a scanned copy of the Power of Attorney to my India lawyer for verification and asked for the next step. Once he was happy with the copy, he asked me to send the Power of Attorney and self-attested copies of our Indian passports to his office. Once received, he would then affix the stamp paper to it and get the signatures of the agent i.e. the person whom I gave the authority through the PoA.
I checked a few courier options and found DHL Express to be reliable, fast, and cheaper. Plus, DHL offered me a home-pickup option as we were in lockdown. All I had to do was print labels and provide the documents to the pick-up person. Like my daughter says – easy peasy, lemon squeezy!
Exactly on the fifth day, I got the email confirmation that the Power of Attorney was delivered to my lawyer’s office in India. From the time I received the first draft of PoA, it took us nearly 4 months to the final result. A lot of it was due to lockdowns and an insanely lengthy process. But finally, we were a step closer to selling our house. It was now just a matter of getting a good offer. I will share my experience of selling a house in India through the Power of Attorney soon.
Did you create the Power of Attorney from Australia to your home country? How was your experience? Did you sell your property through the Power of Attorney? Please let me know about your experience in the comments below.