Thanks to the global pandemic there’s been a significant increase in the demand for legal documents like the power of attorney. Previously, people had the option of travelling overseas to personally handle their own legal and financial matters. However, with the restrictions on international travel as well as increased quarantine measures, some people are now resorting to appointing someone else (ie, an attorney) to handle those matters on their behalf. In most cases, the legal appointment or authority achieved by signing a power of attorney.
As a leading provider of notary public services in Sydney, witnessing and notarising the power of attorney intended for overseas has always been one of our most common requests and we handled powers of attorney from countries all over the world.
How do I write the power of attorney?
The specific form or legal wording necessary to create a legally effective and valid power of attorney will vary between different countries (and potentially between different states within those countries).
Some clients have tried to write their own power of attorney and we have seen many different variations of poorly prepared documents, including some documents written on irrelevant legal forms on the assumption that every legal document is the same. Law is complex. Attempting to deal with the law across borders and different jurisdictions is even more complex. It’s best to not guess – ask your lawyer overseas.
Ultimately, the power of attorney is intended to be part of a larger transaction or dealing. You’re appointing an attorney overseas to handle your legal or financial matters on your behalf. In many cases, a lawyer in that country may also be acting for you or your attorney in relation to those legal or financial matters. It makes the most sense for that lawyer to be helping you with writing the power of attorney that’s valid and legally effective in that country.
Can I use an Australian power of attorney in another country?
It’s always best to use a power of attorney from the intended destination country if you want it to be valid in that country. If you use an Australian power of attorney, you rely on the law of that country to recognise that the Australian power of attorney will be recognised or valid in that country – but why not check first, especially before spending money on the legal processes (like notarisation)?
The standard power of attorney used in New South Wales includes a specific paragraph that “This power of attorney is designed for use in New South Wales only.” For example, the NSW power of attorney includes references to NSW legislation, being the Powers of Attorney Act 2003, which has little to no relevance outside of New South Wales – especially outside of Australia. Despite this, there have been a handful of clients who still use this form and/or consult an Australian lawyer and that lawyer has naively (or mistakenly) prepared or recommended those clients to use that form.
In those cases, whenever clients approach us with a power of attorney prepared in Australia (or according to the standard forms in Australia), we always recommend that they have their lawyer overseas approve it before they sign it and arrange for it to be notarised.
Do I need to have the notarised power of attorney authenticated or stamped with an apostille?
In addition to notarisation, some countries also require the power of attorney to be authenticated by the Department of Foreign Affairs and Trade (DFAT) and legalised by their foreign office in Australia, or stamped with an apostille which is also issued by DFAT. Each country has its own specific requirements and if you have any questions about this, you should consult your lawyer in the intended destination country for more information.
If in doubt, we can provide you guidance as to the technical legal position is according to international law and conventions, however, the technical position is not always appreciated in the practical sense by actual people or organisations that you may be dealing with (especially if they have a different view of what’s required).