What is a Power of Attorney?
A Power of Attorney is a legal document that authorises another person (“the Attorney”) to do something such as signing a document, opening a bank account or attending a meeting on your behalf and with your full authority.
The Attorney does not need to be a lawyer (known as an attorney in some countries. this confuses some people who live in those countries.
Powers come in different types for different purposes.
When can you use a Power of Attorney?
Until fairly recently, you could use a Power of Attorney in almost every case where you could sign a document on your own behalf. In other words, if you were an adult and of full mental capacity you could almost always appoint somebody else to sign things for you.
However, more recently, some countries have made it more difficult to use Powers of Attorney because of fears of criminality, money laundering etc. So, for example, it is often not possible for someone to sign a mortgage deed by using a Power of Attorney on your behalf. See our various guides for the countries we deal with for details of any restrictions that might apply in connection with what you’re doing.
How can you prepare a Power of Attorney?
In general terms, Powers of Attorney for use internationally have to be prepared using arrangements laid out in the Hague Convention of 1961 – “The Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents”. These procedures vary a little from country to country, mainly when it comes to the question of how the document has to be authenticated by the “competent authorities”.
See our various guides to Powers of Attorney for the countries of interest to you for details of any procedural variations that apply in connection with what you’re doing.
If you are unlucky enough to live in a country that is not a signatory to the Hague Convention, things will be more complicated. Strangely, the States that have not signed up include Canada! The detailed arrangements in these cases are outside the scope of this guide. Basically, the document must be certified by the foreign ministry of the country where it is signed, and then by the foreign ministry of the government of the state where the document will be used. The ‘foreign’ certifications will often be performed at that country’s embassy or consulate in your country. In practice this means the document must be certified twice before it can have legal effect in the receiving country. This is a pain.
If you do live in a Hague Convention country, the basic procedure is that the Power of Attorney is drafted by or presented to a Notary. The Notary is normally located near to where the person signing the Power lives or works. When making the appointment, tell the Notary if the Power is to be prepared in a foreign language. Not all Notaries do this but, if they don’t, they should all be able to recommend one who does.
The easiest way to find a notary is online: either a search for “Notary Oslo” (assuming you live in Oslo) or a search for the local college/association/society of Notaries should do the trick.
It is worth sending the Notary an email setting out what you want. Something like:
I need the services of a Notary to do the following:
- Prepare a Power of Attorney for use in COUNTRY. It will be in LANGUAGE. I attach a draft of the required text, as sent to me by my lawyer.
- Witness my signature of the Power
- Arrange for the Power to be authenticated by the Competent Authority, as required by the Hague Convention
- Send me a copy of the authenticated Power and send the original by courier to my lawyer in COUNTRY.
I DO/DO NOT speak LANGUAGE.
I need the Power to be with my lawyers no later than DATE.
Is this something you will be able to help me with?
If so, can you please give me an estimate of your total charges and expenses for doing so?
If not, can you please recommend somebody to might be able to help?
Thank you in advance.
This avoids misunderstandings, not least about money and urgency.
The Notary then prepares the document for signing and then checks the identity of the person who is signing before allowing them to sign the document.
The document is then sent to the relevant official body (“the Competent Authority”) in the country where it is signed. They certify that the Notary is on their authenticated list of people entitled to witness Powers of Attorney and attach a document – called “the Apostille” to it.
The Apostille is the internationally recognised document that allows the Power to be used in any of the 100+ countries that are signatories to the Convention.
It is a stamp or printed form consisting of 10 standard and numbered fields.
At the top is the word APOSTILLE, under which appears the text “Convention de La Haye du 5 Octobre 1961” (French for Hague Convention of 5 October 1961). This title must be written in French for the Apostille to be valid!
In the numbered fields the following information is added. This may be in official language of the authority which issues it or in a second language:
- Country … [e.g. Hong Kong, China]
- This public document
has been signed by [e.g. Henry Cho]
- acting in the capacity of [e.g. Notary Public]
- bears the seal/stamp of [e.g. High Court of Hong Kong]
at [e.g. Hong Kong]
- the … [e.g. 10 July 2015]
- by … [e.g. the governor of the special administrative district of Hong Kong, China]
- No. (number) … [e.g. 2536218517]
- Seal/stamp … [of the authority giving the Apostille]
This information can be stamped onto on the back of the original document or attached to the document as a supplemental sheet.
Although this general process is followed almost everywhere, there are places and circumstances in which the authorities will accept a much simpler way of doing things.
In practical terms, this is all easier than it seems. Your lawyer in the country where the document is needed will give you the details of the text needed in the Power of Attorney and should tell you how you should deal with obtaining the Power of Attorney. Make sure he gives you the full text with all the names, dates etc already inserted. this is particularly important if the Power is to be drafted (as will often be the case) in a foreign language.
Once you have done the necessary (and paid the fees involved) the power can then be sent overseas to the lawyer or other person who you have chosen to appoint to sign on your behalf. For your peace of mind, it should be sent by courier – not post – and insured. It is expensive to replace.
What will the Power of Attorney say?
This will depend entirely upon what you’re trying to achieve.
Be aware that most Powers of Attorney are drafted very widely so as to make sure that the person appointed has the authority to do anything that might conceivably be needed in connection with your transaction. So, for example, a Power of Attorney authorising somebody to sign a purchase contract in connection with a house you’re buying might contain clauses authorising them also to open bank accounts, make bank transfers, file tax returns, sign forms at the land registry, sign contracts with the electricity country etc etc. You should try to make sure that it is not too widely drawn.
Whilst thinking about limiting the scope of the powers given, you might also want to think about limiting the duration of the Power. For example, you could grant a Power that automatically expired after 12 months so that it could not be used years later by some unscrupulous person to empty your bank account.
Can you appoint anybody to sign on your behalf?
In most cases, yes. The person must be an adult and of full mental capacity. It is commonplace to appoint your lawyer; somebody in the office of the Notary who will be dealing with the transaction; or a member of your family to sign for you.
It is worth giving some thought to who should be appointed. A Power of Attorney is a powerful document and so it must be somebody you trust. It also needs to be somebody who is going to be available at the necessary time – even, for example, if the signing has to be put off for a few weeks.
It is possible to appoint two or more people to sign on your behalf in such a way that any one of them can sign. This is very useful. For example, it means that you can appoint two or three lawyers in your lawyer’s office so that one of them is on holiday, or ill or in court it doesn’t bring the transaction crashing down. There is no extra costing doing this.
Can two or more people grant the same person power of Attorney?
Yes. Provided that the person would not be signing when there is a conflict of interests. For example, a husband and wife buying a home could grant the same person Power of Attorney to sign on their behalf as there is no conflict of interests between them. However, the buyer and the seller of a home or a boat cannot (or should not) grant the same person power to sign for them both as there is a conflict of interests between them.
In many countries if two people are granting a Power of Attorney it will need to be in two separate documents. See our country specific guides for more details.
Can you cancel a power of Attorney?
Yes. A Power can be cancelled (“revoked”) at any time. Of course, this doesn’t undo any actions already taken using the Power. Revocation is done by serving a notice on the person appointed under the Power. The notice can be sent informally – usually be email – but it is important that you receive an acknowledgement from the person receiving it that the Power is cancelled. Ideally, they should send the original back to you but sometimes this will have been filed with some authority such as the court or the Land Registry and so it cannot be returned. If you don’t receive an acknowledgement you should sent a further copy in such a way that you have proof of delivery.
What does it all cost?
This will vary but for a Power of Attorney prepared in accordance with the Hague Convention arrangements you will find that the fees paid to the Notary and to the official certifying department could easily amount to US$750-US$1,000 for even a simple Power.
How long does it take?
Powers of Attorney can usually be prepared quite quickly. If your lawyer sends you the contents of the document in electronic format (preferably Word) you should be able to get an appointment to sign it in front of the Notary within a couple of days and it should then take no more than three or four days to have the official certifications (Apostille) attached to it. It may then take several days for it to be taken by courier to whoever needs it overseas.
Allow at least two weeks, preferably three. It’s always the ones that are urgent get delayed!
The person overseas will need the original Power of Attorney. They can’t sign on the basis of an emailed copy. They may, however, be able to do all of the preparatory work on the basis of an emailed copy.
Is it a good idea to grant a Power of Attorney?
In many cases you will have no choice but to do so; simply because you will not be able to guarantee that you will be able to be present, sometimes at short notice, when necessary.
However, it is quite an expensive exercise and, with the low cost of airfares, it can often be as cheap – if you have the time available – to fly out and sign yourself. Doing so has a number of advantages. It means you can check that everything is as it should be (for example, by inspecting the property before you sign for it) and it means that you will be able to deal with any last-minute crises that crop up in connection with the transaction.