3 Types of POA Society Should Understand
In this section, the author will briefly explain types of POA regulated in Indonesia Law. As explained on "Power Of Attorney" previous article, this article is intended for people who do not know yet the purpose and the intention of POA. Please note that each POA has their own use which will author explain as follows:
1. General POA
The General POA is regulated in Article 1795 Civil Law, based on that article the general POA purpose is to empower someone to manage the grantor interest, namely:
to perform the proceeding in managing the grantor assets;
this management of assets cover everything related to the grantor interest over his/her assets;
thus, the emphasis of general POA only covers a deed or the measure of assets management of the grantor based on his/her interest.
The author concludes that the general POA is empowerment only regarding management (beherder), to manage the grantor interest. This management is limited to the grantor assets as explained on point b above, not to transfer the right of the grantor assets or to act on behalf of the grantor to appear before the court.
2. Specific POA
Article 1795 Civil Law further explain that the empowerment could be granted specifically, namely only concerning one or more interests. This format is what grant the proxy to appear before the court representing the interest of the principal. However, in order this format to be valid, it has to meet certain conditions stated in Article 123 HIR (Civil Procedural Law).
Therefore, the specific POA is only concerning one or more interest of the principal which empowered and accepted by the proxy. More means that the action are interrelated with the main purpose of the POA, i.e. "to act for and on behalf of the principal to represent and to defend the principal interests as the plaintiff to make, to sign, and to file a lawsuit" or it could be specifically only to sell a house. This POA only limited only to what is stated in the provision.
3. Special POA
Article 1796 Civil Law regulates the granting of special POA, this provision may be linked to Article 157 HIR and Article 184 RBG (Regional Civil Procedural Law). If strung together, several conditions must be fulfilled so that POA is legally valid as a special POA, those conditions are as follows:
Limited only to certain proceeding that are very important. In principle, a legal action that can only be done by the principal himself. Regarding the proceeding that can be represented based on special POA are limited
to transfer the right of the principal / the grantor assets, or to put a mortgage on the assets.
to resolve disputes to the third party.
to convey a deciding oath (decisoir eed) or supplementary oath (suppletoir eed) based on the provision stipulated on Article 157 HIR or 184 RBG.
Authentic Deed Format
According to Article 123 HIR, special power of attorney can only be given in the form of a valid letter. R. Soesilo interprets it in the form of an authentic deed (notarial deed). This opinion is generally accepted by legal practitioners. Therefore, in order for a special POA to be valid according to law, it must be made in the form of a notarial deed. The deed should affirmed with explicit term, regarding what proceeding the proxy need to do.
Author's Note 1 Often people misguided or even deceived by misprocedurial, therefore you have the right to suspect someone who is not in his capacity to offer something both services or goods. Small example, someone selling a car without POA from the owner, then offering the car to you. Some of you might consider it just a small matter or for the worse, you do not know anything about the procedural and took the offer. However, based on the author's experience, this chain of procedural could be used as evidence when legal issues arise in the future.
Author's Note 2 The readers are expected to be aware of the importance of risk management against an action that could harm your interests in the future.
Author's Note 3 Consult and discuss with your chosen attorney or legal counsel before making a legal decision.
*Please note that articles used in this article is according to Indonesia Law
*Please note that this article is based from author's legal point of view
Author: Andre Putra Jadnya, S.H., M.H.
Beberapa Yurisprudensi Perdata yang Penting, Edisi II, MA RI, Jakarta, 1992, dan Pembinaan Wawasan Hukum Indonesia, No. XXIV, 1990, 17 April 1990.
Chaidir Ali, Yurisprudensi Hukum Acara Pedrada Indonesia, Armico, Bandung, 1983.
M. Yahya Harahap, Hukum Acara Perdata, Sinar Grafika, Jakarta, 2017.
R. Soesilo, RBG/HIR dengan Penjelasan, Politeia, Bogor, 1985.