Power of attorney

‍What is a power of attorney?

A power of attorney is a legal document by which a legally binding authority is conferred on another person to make decisions and take actions on your behalf in accordance with the scope of and any limits to the powers you grant in the document.

I need to get my power of attorney signed by a notary.  Can you help?

In a word, “Yes!”.  I am able to help you with the signing of your power of attorney, both for use in the UK and abroad.

What is a power of attorney?

A power of attorney is a document that is intended to save you from having to be present to make decisions and take actions in relation to matters where it is not convenient for you to do so.  

By signing your power of attorney document in the correct way, you create and confer a valid and binding authority on the person named in the document to act on your behalf.

In England and Wales, the ability to create a power of attorney derives from legislation and other countries have similar legislation.

The power of attorney document may be presented to a third party (such as the seller of a property) as proof that the person you have nominated to be your attorney can act on your behalf (for example, to buy that property).

What do you mean by “a valid and binding authority”?

When faced with an attorney who is acting on behalf of someone else, the person presented with the power of attorney document is going to want to know that they can rely on the authority stated in the document.

Imagine that you are working at a bank or in a Court and a person says to you that they are acting on behalf of another person and want you to do something.  As a representative of the bank or the Court, you are not going to want to lend money or take action in the Court without being really sure that the person in front of you has the right to borrow the money or give the instruction on behalf of the other person.

By signing your document in the right way, the power of attorney becomes a valid, legal instrument and is binding upon you; meaning that, in my example, the bank or the Court would have a right of redress against you, the giver of the power of attorney, if needed in relation to the obligations assumed by the attorney holder on your behalf.  

The legal obligations arising through dealings with the person acting on your behalf become your legal obligations, as though you had signed a document with the bank or the form at the Court in your own hand.

My power of attorney is for India.  Are you able to notarise it?

As a notary public, duly authorised to act in England and Wales, I am able to notarise your power of attorney for use in India.  

Most jurisidictions have the concept of a power of attorney and, where the document is to be executed in England, most of those jurisdictions require the document to be notarised.  

My job when notarising your power of attorney is to validate your identity as the giver of the powers and to ensure that the steps taken to sign the document fulfil the requirements of India (and England and Wales) for due execution of the document.

India’s laws do not make it mandatory for a power of attorney to be notarised but signing in front of a notary raises a presumption of due execution by fulfilment of the required steps, which itself means that the document will not fail by reason of not having been properly executed.

Alaya, Legal of India have written a helpful article outlining the law relating to reliance on powers of attorney in India and you can access that here: Powers of Attorney – Some Important Aspects - Alaya Legal

One of the important points arising in that article relates to the scope of the power of attorney.

What is the difference between a General Power of Attorney and a Specific Power of Attorney?

The Indian court case of K. Akbar Ali v. K. Umar Khan (MANU/SC/0261/2021) (this link works in Edge but not in Chrome) illustrates the importance of ensuring that your document properly describes what it is you want the person acting on your behalf to be able to do.  

If the powers you confer are too broad, as might arise under a General Power of Attorney, it might be that your attorney can commit you to obligations that you had not anticipated.  

If your power of attorney is too limited in its scope, as might arise under a Specific Power of Attorney, it might be the case that the attorney does not have sufficient power to create the obligations necessary to complete the transaction in question.

Broadly speaking, a General Power of Attorney will confer very broad and all-encompassing powers for your attorney to create legally binding commitments on your behalf.  

A Specific Power of Attorney is likely to be drafted in a way that confines the ability of your attorney to make dealings relating to a specific transaction, such as the purchase or sale of a property.  

Even within a Specific Power of Attorney, quite broad powers are required so don’t be surprised if the list of powers is still very long within a Specific Power of Attorney.

Powers of Attorney for Spain, Portugal, Greece and other countries

You may be thinking of living abroad or buying or selling a home in the sun.  

You may be in the sad situation of selling the property of a parent who lived abroad and has now died.

In these situations, it is common to wish to give your lawyer the authority and power to progress your property sale or purchase on your behalf.  Where a relative has died abroad, you are likely also to wish to ask a local lawyer to be the administrator of your relative’s estate.

By signing the power of attorney in favour of your lawyer, you avoid the problems that can arise from having to sign numerous documents without with formal procedures and transactions can not proceed.  Unless you grant powers of attorney to the lawyers, you may have to live abroad for months to sign the papers or incur a lot of expense flying back and forth to sign the papers when needed.

Powers of attorney for Spain and Portugal are often presented in a dual-language format, with the Spanish or Portuguese language, respectively, set out in a column that is matched with an English translation in an adjacent column. Dual-language documents set out in this way are not ideal but are usually unavoidable.  The challenge is that the English translation usually amounts to a summary of what is written in the primary language; that means, unless you are fluent in the primary language, you will not be 100% certain of what powers you are conferring on your lawyer.  The “primary” language will usually be stated to the one that counts, with the English language version being stated to be “for information only”.

Ultimately, this is a choice.  You might think that because you are already placing so much trust in the overseas’ lawyer (by asking them to make decisions and act on your behalf) that there is little value in challenging the exact wording of the primary language.  

Alternatively, you may prefer to know exactly the scope and extent of the powers you are signing over.  In that case, you might choose to ask your lawyer to present you with a certified translation of the primary language or ask that the document be executed in English only for later translation into the primary language by a local agency.

Does my power of attorney need to be executed as a deed?

The law relating to the execution of documents amounts to a vast body of literature.  In English law, a power of attorney must be executed as a deed .  And, in order for a deed to be valid and binding under English law, the formalities under English law for the execution of deeds must be observed.  The formalities for individuals are prescribed by the Law of Property (Miscellaneous Provisions) Act 1989, section 1.

Other UK legislative provisions govern the formalities for execution by corporate entities of different types and by different regions within the UK. The perils of not executing a document correctly were made clear by the English case of Briggs and others v. Gleeds (Head Office) and others [2014] EWHC 1178(Ch)  where a failure to use the correct attestation clause created a £45 million deficit in the funding of a company pension trust.

A clear summary of the formalities to be observed in relation to the execution of documents whose purpose is the transfer of title to land in England or Wales is helpfully set out by the Land Registry.  Key elements to the execution of a deed for England and Wales are:

1. The transaction must be record in writing; of course, a document meets that requirement;

2. The person signing it must intend that the document be signed a deed; the easiest way to meet that requirement is to say in the document “signed as a deed”.

3. The document must be validly executed; in practice, this means an individual’s signature must be clearly stated to have been witnessed.

4. The document must be “delivered as a deed” ; “delivery” is achieved by the signatory expressly or impliedly acknowledging, by words or conduct, an intention to accept and be subject to the obligations set out in the document as signed.

Those requirements are the guiding light for the due execution of any kind of deed in England and Wales, including power of attorney.

When I sign a power of attorney for India, or Spain or Portugal or elsewhere, do I need to comply with the laws of England or the laws of India, Spain, Portugal or elsewhere?

When executing your document, my job will be to ensure that you fulfil the requirements of English law in order that the document may be understood to be valid and binding under the laws of the jurisdiction where it has been signed; but, I will also want to ensure that it is valid and binding in the country where you intend the document should be used.

At the outset of my dealings with you, I will ask you if you have received specific written instructions from your lawyer in the receiving jurisdiction.  If you have not, I will suggest that you get them.  That way, we can be sure that, when your document is received by your recipient abroad, it will work without the risk of being rejected by the relevant authorities.

Do I need witnesses to sign my power of attorney?

As an individual, a witness to your signature of your power of attorney will always be required in order for it to be validly executed as a deed under English law.  In order for your document to be valid abroad, it must have first been executed in accordance with English law, meaning that your signature of the power of attorney will always have to be witnessed.

If you are signing a deed on behalf of a company or other corporate entity, it is essential to observe both the law and specific regulations or requirements of your company/corporate entity. That may require a witness and I will check on a case by case basis.  

My role will be to ensure that I have fully investigated what rules apply to your signature and to ensure they are fully complied with.  

By signing the document as a notary, I will conferring my internationally recognised guarantee that the document is validly executed and binding on you or the corporate entity, as the case may be.

Who can act as witness to your signature of a power of attorney made as a deed?

Ideally, a witness will be an adult who is someone who is independent of you and the document that you are signing.  

Often, I will be able to act as your witness as well as acting as your notary.  

Some documents and jurisdictions, however, require that your witness be someone other than me when I am acting as your notary.  

When I sign, if I am fulfilling both roles, I will make clear when I am signing as a witness and when I am signing as a notary.  

The Mississippi case of the Estate of Samuel A. Marr illustrates the problems that can arise if stipulations for signing set out on a document are not followed; in that case, the document indicated that two witnesses were necessary but only one person signed as a witness in addition to the notary (who notarised the signature of the witness).  In that case, the US Court ruled that the signature of the notary, in his/her capacity as notary, did not fulfil the requirement of acting as the second witness. A case summary is here.

Where additional witnesses are needed and I do not satisfy the requirement to act as witness, it will be necessary for you to bring your own witnesses to the meeting.  

Powers of attorney for India customarily require that two witnesses sign in addition to you and me.

It is permissible for your friend, relative or colleague to act as a witness to your signature except where they have a personal interest in the document or transaction; in that case, someone else who is independent of the document and the transaction should be asked to come as your witness.

Good practice when a person witnesses a deed is for their name, address and occupation to be clearly stated on the document where they sign it.  That way, the witness can be more easily contacted in the event of any questions arising as to the formalities surrounding the execution of the document.

Does the witness need to be with me when signing or can they witness my signature remotely?

A witness to a power of attorney needs to be physically present with you and able to see you sign the document in front of them.  

I will be able, remotely, by video-conference, to observe you and your witness sign the document without me actually being present when you sign the document.  This approach can be very convenient if arranging for you and your witness to meet me in person is too difficult.  I will follow special steps to identify you and your witness before and during the video-conference and my notarial certificate will reference that I observed the signature remotely.  Accordingly, it is essential that we clarify with the recipient of the document that my remote observation when acting as a notary will satisfy the jurisdictional requirements for execution of the document.

My power of attorney for India mentions a photograph and fingerprints; is that normal?

The exact requirements for documents for India vary according to the institution and the State where the document is to be received.  It is as common for a document to make no mention of a photograph and fingerprints as for it to do so.

The only way to be certain what is required for your document is to get clear instructions from your lawyer or receiving institution in India.

When considering how to deal with your power of attorney for India, you have a choice of paths to follows: either, sign your document in front of a notary and arrange that it be legalised by the UK’s Foreign, Commonwealth and Development Office ; or, arrange to sign your document at the India High Commission.

Often, you may be told that you need to follow a path of seeing a UK notary for UK legalisation and then and, in addition, attend the India High Commission.  Any suggestion like that is invariably incorrect.  India is a signatory to the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents .  The effect of the 1961 Convention is that UK Government legalisation of my notarial certificate to your power of attorney for India is as effective as having it legalised by the India High Commission.

Legalisation of your power of attorney.

Powers of attorney for use in Spain, Portugal, Greece, Malta, Bulgaria, Hungary and many other European states usually require that a document be legalised after it has been notarised.  Further information about obtaining an apostille can be found [elsewhere on my website].

Procuration documents for France usually do not require legalisation.  

Similarly, when notarised, documents for the Netherland and for Germany often do not require to be legalised.

Additional requirements for your power of attorney for India, Spain, France, Greece, Malta and other countries

For many countries it is quite usual and, for Spain and Portugal, it is essential that a certified copy of your passport be attached to your power of attorney.  Where you are applying for an NIE number for Spain you may be required to submit a certified copy of every page of your passport.

When I certify identification documents for your power of attorney, I will attach them securely to your power of attorney document so that you only need to purchase a single apostille.  Each apostille must be paid for so we will want to purchase as few possible while still meeting your requirements for the power of attorney to be effective.

How long will your power of attorney continue?

Your power of attorney will endure according to any time limits you have set (or not set) within your document.  You can state that the powers will continue for a period you specify (for example, a few months or years).  

Most people will want to ensure the power of attorney continues for a period sufficiently long to allow the relevant actions and transactions to be completed without risk of the authority of the attorney expiring first.

Some jurisdisctions may have laws that set a limit on the effectiveness of a power of attorney.  If a long time has elapsed since a power of attorney was granted, the attorney may prefer that you put in place a new power so that he/she/they can be sure the powers under it may be seen by a Court to be continuing.

Unless you state a date upon which your power of attorney will expire automatically, you will need to execute a deed of revocation of your power of attorney to bring it to an end and serve that on your attorney.

Summary

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