My father is comatose. Can I use the power of attorney granted by him now? | Mint

I am a caregiver for my father, who has been comatose for the past few months due to an accident. When he was active, he granted a power of attorney (PoA) in my favour, which permits me to sign documents and operate certain bank accounts on his behalf. There is no duration or validity/time period specified in the PoA. Would it be legal for me to withdraw money from his bank account or otherwise undertake transactions on his behalf based on the PoA now to provide for his medical treatment?

-Name withheld on request

Unfortunately, since your father is comatose and does not have the mental capacity to act, legally, the PoA in your favour terminates and is no longer effective. Therefore, you cannot withdraw money from your father’s bank account or otherwise undertake transactions on his behalf under the PoA. Any actions that you may seek to take under the PoA could be challenged for the lack of authority. 

The legal basis can be explained thus: As you would know, a PoA empowers the person to whom it is granted (PoA holder) to act for and in the name of the person issuing it (grantor) with regard to matters specified in the PoA. The legal relationship between the grantor and the PoA holder is akin to that of a principal and an agent. Since the PoA holder (agent) acts on behalf of the grantor (principal), in circumstances when the grantor (principal) can no longer act for himself, then the PoA holder (agent) can no longer act for him.

Instead, if you wish to access your father’s bank accounts or otherwise act on his behalf, then you may consider seeking an appointment as the guardian of your father, while he remains in a comatose condition. For this, you will need to file a petition before the local high court and seek an order of guardianship in your favour. Once appointed as guardian, you will be able to operate bank accounts and hold and manage other properties of your father in accordance with the terms of the court order so that medical costs and other expenses are taken care of.

Shaishavi Kadakia is a partner, and Sachi Shah is an associate at Cyril Amarchand Mangaldas, Mumbai.