Notary public witnessing Power of Attorney for use overseas
As an experienced notary public and a leading provider of notary public services in Sydney, we assist many clients with important legal documents intended for use in other counties. One of our most common requests is to assist with notarising a document commonly known as a power of attorney.
Depending on the country, sometimes this document is called a general power of attorney or special power of attorney (depending on its purpose), other times it is simply known as an authority letter or agent appointment. Essentially a power of attorney is a written authority that you give to someone else (ie, your attorney) to empower them to do certain things on your behalf. For example, you might need to appoint an attorney because you are not physically present somewhere to physically sign important documents and so your attorney will then be able to sign those documents on your behalf in accordance with the authority that you have granted to them in the power of attorney.
In New South Wales, the authority that can be granted by a power of attorney is limited to legal and financial matters only (in accordance with the Powers of Attorney Act) – but in other states and countries, this power may also extend to dealing with and making decisions in relation to your personal, health and welfare matters.
Generally, if you own property in another country and you want to appoint someone to deal with that property on your behalf, you would need to appoint that person as your attorney through a power of attorney. It is important that the power of attorney is valid according to the laws of the country in which it is to be used rather than the country in which you create the power of attorney. This means, even though you might live in Australia, if you own property in another country then the power of attorney should be valid in that country (ie, the intended destination country) since it is going to be used there rather than for the power of attorney to be valid in Australia.
For example, if you own property in Singapore but you live in Australia, you may need to appoint an attorney in Singapore to look after your property on your behalf (ie, this is very common especially with HDB apartments). The power of attorney that you prepare to appoint them as your attorney should be valid according to the laws in Singapore rather than Australia even if you are signing that power of attorney in Australia. Also, if your intended destination country uses an official language other than English, then not only would your power of attorney need to be valid according to the laws of that country, but also written in the official language of that country. For example, a power of attorney written in English may have limited effect in a country like China, or the United Arab Emirates (UAE), or Croatia.
In providing notary public services, we witness many different types of power of attorney intended to be used in many different countries all over the world. Usually, the power of attorney will be prepared by lawyers in the intended destination country and sent to Australia for signing in front of a notary public. Sometimes the form, format, or even the paper on which the power of attorney has been printed will be important – but it depends on the intended destination country and legal advice from that country. For example, a general power of attorney used in India and prepared in India might be printed on ‘bond paper’ or ‘stamped paper’ because that is evidence that duty according to the law has been pre-paid with respect to the power of attorney (although, we witness just as many general power of attorney documents for India printed on normal A4 paper – which is the usual case if the power of attorney is sent by email in electronic form).
It is important to be aware that different countries have different signing requirements for the power of attorney to be legally valid according to their laws. When signed in Australia, some foreign countries require the power of attorney to be signed in front of the notary public only, while others may require one or even two witnesses in addition to the notary public. Depending on the intended use, after the power of attorney is signed in front of the notary public, the notarised power of attorney requires authentication and legalisation, or have an apostille attached by the Department of Foreign Affairs and Trade.
For example, the power of attorney for use in China or the UAE must be notarised, authenticated by DFAT and then legalised by the respective consulates for China or the UAE as the case may be. On the other hand, the power of attorney for use in India, South Africa or Croatia must be notarised and stamped with an apostille from DFAT before it can be sent to those countries – and no legalisation is required.
To be sure of the requirements of your power of attorney (or your situation), the lawyers who prepared the power of attorney should also provide you with instructions on how it should be signed and whether it requires an apostille, or authentication and legalisation.