Notarising a Power of Attorney for use abroad

Further reading from this practice: Blockchain and Irish Law, What is a Notary Public in Cork?. For Hugh's background and qualifications, see Hugh Phelan.

The power of attorney is the most useful instrument in cross-border legal practice and the most often mis-drafted. A client living in Cork needs to authorise a relative in Lagos to sell a property. A foreign company needs an Irish director to authorise an executive in São Paulo to sign a lease. A pensioner in Cork needs to authorise a son in Boston to operate a US bank account. The factual variations are endless. The notarial discipline is consistent.

This is a working note on what makes a power of attorney work in the receiving jurisdiction, and what makes it fail. It is written from the notarial side of the practice and assumes the underlying legal advice — whether the power is appropriate, what authority it should confer — has been given by a solicitor competent in the receiving jurisdiction's law.

What a power of attorney is, and is not

A power of attorney is a written instrument by which one person — the donor — authorises another — the attorney — to act on the donor's behalf in specified matters. The instrument is governed by the law of the place where the donor signs and is recognised in the receiving jurisdiction according to that jurisdiction's rules on private international law. Irish law gives effect to the Powers of Attorney Act 1996 and its amendments; an Irish-law power of attorney is interpreted under that Act and the common law.

The power is not a transfer of rights. The donor retains the legal capacity that is being delegated. The attorney exercises that capacity on the donor's behalf, within the scope conferred. Anything the attorney does outside the scope is not the donor's act, and the receiving counterparty cannot enforce it against the donor.

The instrument can be specific — authorising a particular act or transaction — or general — authorising a class of acts or a class of transactions. The drafting choice has serious consequences in foreign use. A general power of attorney that authorises the attorney to do "anything the donor could lawfully do" is often refused by foreign banks, land registries and notaries on the basis that the authority is too broad. A specific power of attorney that authorises the attorney to sell "the property known as 12 Acacia Avenue, Lagos, registered under title number X" is almost always accepted. The discipline is specificity.

What the receiving jurisdiction needs

Every foreign authority that has ever asked me to notarise a power of attorney has wanted four things, in addition to the operative text. The donor's full legal name, as it appears on a passport or national identity document. The donor's address. The donor's date of birth or another identifying detail. The donor's signature, signed in the presence of the notary and witnessed by the notary.

Beyond that, the receiving jurisdiction has its own quirks. American banks require the donor's social security number where the donor has one. Brazilian land registries require an electronic copy of the passport photograph page certified by the notary. UAE authorities require the document to be in both English and Arabic. Italian notaries require the donor's codice fiscale. Spanish registries require the donor's NIE if the donor has one. These are not the notary's requirements; they are the receiving jurisdiction's. The notary's job is to ask in advance and to draft accordingly.

The single most useful thing a client can bring to a first appointment is the foreign counterparty's written list of requirements. A short email from the receiving lawyer or bank, in any language, listing what the document must contain and how it must be authenticated, saves an enormous amount of redrafting.

The notarial certificate

The notary's certificate attached to a power of attorney typically attests to the following facts. That the donor appeared before the notary in person. That the donor exhibited identification of a specified type. That the donor declared their understanding of the instrument and signed in the notary's presence. That the donor appeared to the notary to be of sound mind and acting freely. That the document is a true and faithful instrument, dated and signed.

The wording of the certificate varies with the destination. A certificate for use in the United States is typically more elaborate than a certificate for use in continental Europe, where the receiving notary will issue their own certificate on top. For Common Law jurisdictions, the Irish notary's certificate is usually the principal authentication. For Civil Law jurisdictions, the Irish certificate is one layer in a chain.

The Faculty of Notaries Public Ireland publishes precedent certificates for the most common destinations, and an experienced notary will adapt these to the specific document and receiving jurisdiction. A practitioner who uses an off-the-shelf certificate without adaptation is more likely to have the document rejected at destination.

The apostille step

An Irish-notarised power of attorney almost always requires an apostille from the Department of Foreign Affairs before it is sent abroad. The apostille authenticates the notary's signature and seal. The exception is the small number of non-Hague Convention destinations, for which embassy legalisation is required instead. The apostille step is set out in detail in the apostille process in Cork.

The combined timetable — notarial appointment, notarial certificate, Department of Foreign Affairs apostille, international courier — typically runs to two to three weeks for a non-urgent matter. For urgent matters, the Department offers a same-day apostille service, the notary can offer same-day appointments where the diary allows, and the courier step can be compressed to next-day. The shortest end-to-end time I have achieved is three working days, but the document arrived in Madrid on a Friday afternoon, which was the deadline.

Common drafting mistakes

The undated power. A power of attorney without a date of execution is often rejected. The date is the reference point for the period of authority, for any later revocation, and for the receiving jurisdiction's records.

The undated authority. Even where the document is dated, a power of attorney without a stated period — start and end — is sometimes refused by foreign authorities that require a defined window. A general statement that the power "shall remain in force until revoked" is usually acceptable, but a specific end date is safer.

The single-language power for a bilingual destination. Civil Law jurisdictions often require the document in the local language alongside English. A power drafted in English alone for use in São Paulo will require a certified translation, which is a separate step the donor should plan for.

The attorney without an address. Foreign authorities almost always require the attorney's address, not just the attorney's name. A power that names "John Smith" without further identifying detail will be returned for completion.

The corporate power without resolution. A power of attorney granted by a company should be accompanied by a notarised certified copy of the board resolution authorising the grant, and by a notarised certified copy of the company's constitutional documents to establish the signatory's authority. Many foreign jurisdictions will not accept a corporate power of attorney without these supporting instruments.

Revocation

A power of attorney can be revoked by the donor at any time, subject to the terms of the instrument and any third-party rights that have already vested. The revocation should itself be in writing, should be notarised in the same form as the original instrument, and should be served on the attorney and any third party known to be relying on the power. Where the original power has been registered with a foreign authority — common for property powers in continental Europe — the revocation must also be registered. The drafting of the revocation, including the chain of service, is itself notarial work and should not be left to template.

For a closely related working note on the apostille step that follows almost every notarisation of a power of attorney, see the apostille process in Cork. To book a notarial appointment with Hugh Phelan, call (021) 489-7134 or visit phelansolicitors.com.