Dubai: Four years ago Dolores Ferrari, 59, an Argentinian expat living in Abu Dhabi was staring at a blank wall. Her husband - a helicopter pilot - Leonardo Ferrari, 44, also an Argentinian expat, fainted in his bathroom after experiencing dizziness coupled with high temperature.
She called for an ambulance and he was immediately rushed to the hospital where he was taken straight into the intensive care unit (ICU). Added to this, Leonardo was in the middle of a rental dispute when this was all happening. He had to appear in the local courts for a hearing the next day.
So Dolores made an appearance in the court on her husband’s behalf only to be told she did not have the authority to represent him as she did not have a valid power of attorney (POA) granting her rights to represent her husband.
The following days, Dolores was stuck in a quandary, not knowing what to do next.
To the couple’s good luck however, Leonardo’s health began to slowly improve. He was shifted out of the ICU in a week’s time, but was still out of action when it came to fulfilling his day-to-day activities. And during this time Dolores was left to his wife was left to manage things herself.
She could not withdraw funds from her husband's account and had to depend solely on her personal savings in order to survive.
Recalling the incident, Leonardo told Gulf News, “My wife was financially independent so it was fine. The other good thing was that I recovered soon so my wife was not put in any major jeopardy. Had my situation been worse or my wife was not financially independent, she would been in a worse mess.”
What had happened
According to Devanand Mahadeva, a specialist in Inheritance & Personal Law and director of Goodwins Law Corporation who helped prepare a will and POA for the couple said: “At the time of the incident, the couple had drawn out a POA, but it was not notarised at the Notary Public and therefore was invalid in the local courts.”
Everything is at a standstill
Another Indian expat Sandhya, 58, (name changed on request), also from Abu Dhabi, has a sad tale to tell. Her husband, Ramesh (name changed on request), has been in a comatose condition for the last four years.
The couple have a valid will in place, but not a valid POA.
Close to half a million dirhams of his money and investments are stuck, and his wife Sandhya cannot do anything about it until she gets her paper work right. Worse, for the last four years, since the time he was incapacitated, Ramesh’s vehicle has not been renewed, nor has his mobile phone sim card. Like this there are more transactions and activities on hold as as result of no authorised person to deal with it.
“Remember, a will is valid only when a person dies. In a situation where a person is incapacitated, but is not clinically declared dead, it is the POA that is legally binding,” said Mahadeva.
“In the case of Ramesh and Sandhya, they did not have a POA. Before Ramesh's health deteriorated, the couple had drawn out a POA after hiring a lawyer from India. That POA was flawed – as it did not cover the UAE territory. Also, the couple did not notarise the POA at the local notary public, so it was invalid,” he added.
Mahadeva is currently dealing with Sandhya’s case and working towards granting her a guardianship of her husband. “That is the only recourse left for Sandhya. Unfortunately, she was not aware of this process and only approached us last month. We are in the process of collecting all proof of documents to show her husband is in no condition to conduct his normal activities and hence the grant Sandhya the guardianship. It will be left to the judge in the local courts to grant her the guardianship.”
Explainer: All you need to know about the power of attorney (POA)
According to Ali Al Haddad, head of Haddad & Associates and chairman at Lawyer Business Group: “A Power of Attorney (POA) is a declaration for delegation of authority to another person to act on behalf of a person or entity. In general, any person can be given the power to act on behalf of a person – this person can be a family member, a lawyer or a friend. Basically the person you are entrusting the power to should be trusted,” said Al Haddad.
He said there are two kinds of POA which people can make. “One is a general POA giving rights to a person or entity to conduct all transactions on behalf of someone. When someone comes to me with such a request – I always ask them if they have thought about this. I ask them if they need a POA in the first place and why they are looking to appoint someone else to run their business. This is a very serious matter and must be entrusted to only someone trust-worthy.”
Al Haddad said the second type of POA is more specific where the circumstances and limitations of the powers of a person is clearly detailed in the document.
“Always read the draft of the POA before notarising it,” advised Haddad.
Why have a Power of Attorney?
Mohammad Marria, managing director of Just Wills said: “How many times have you heard of situations where someone is in a coma and they wake up after several years. Have you ever stopped to think how the finances of someone in a coma continue to flow in a correct manner.
How many terrible disasters such as earthquakes or mudslides have you heard about in the news. In some cases it is next to impossible to confirm the death of the person as you cannot find the body. Just to add a few more dreadful situations to the list like plane crash like in the case of the Malaysian Airline MH370. There is no official death certificate so what do family members do?"
“According to International Law if someone is missing and or presumed ‘dead’, there is a waiting period of up to seven years. In some countries this is up to 10 years. So the reason why we strongly recommend a POA is so that the family can deal with day-to-day running of the business / estate / companies / bank accounts without the finances coming to a halt,” explained Marria.
When does a POA become invalid
“A POA is to be used during the lifetime of a person and becomes null and void when the person dies. Please note that a POA document is not to substitute with a will, but instead compliment the will,” said Marria.Al Haddad.
“Issue a general POA only to a person who you can fully trust, since it gives the person to act and make decisions on your behalf. Else, you always have the option of a special POA.”
Al Haddad said that in Dubai, in certain cases, a general POA may not be acceptable for certain transactions like selling a real estate. Here a special POA is required.
How to make a POA and legalise it
Mahadeva said a person has to be of legal age (21 years) in order to make a POA. In the UAE, a POA is reviewed by the notary public and stamped as a legal document after paying the applicable attestation fees. The POA must be primarily in Arabic, or with official translation from any other language into Arabic. If a POA is issued abroad, in order for it to be valid in the UAE, it must be notarised in the UAE.
He said for a standard personal POA, the following documents are required to be carried along at the time of notarisation before a Notary Public in UAE:
1. Original passport (+ 1 copy) of the principal
2. Three copies of the POA to be notarised
3. Original Emirates ID (+ 1 copy) of the principal (applicable for UAE residents)
If a Power of Attorney is for a real estate or for or on behalf of a company, then it is mandatory to present the ownership documents of the property and / or incorporation documents of the company before the Notary Public.
According to Marria, all POA registered at the Abu Dhabi courts are only valid for three years.
Dubai Courts registered POA are valid for life. However for all immovable properties the POA has to be revalidated every two years as per the Dubai Land Department (DLD) requirement. "My advice to all those who draw a POA in the UAE, to submit a copy in the bank for their records and they may insist you complete one of their own POA as well," said Marria.