How to issue a power of attorney abroad: advice from an experienced notary

People living abroad every day face a wide variety of tasks at home, which create a wide range of problems: drawing up a power of attorney to receive a pension, selling real estate, deregistration, inheritance, etc. When turning to friends, acquaintances or social networks for answers to their questions, many people receive harmful advice and misinformation that is far from reality. Every day on Facebook pages I see militant advice that, they say, you can only issue a power of attorney or enter into an inheritance by contacting the Russian consulate. Fortunately, this is not the case.

Photo from the personal archive of Karina Duval

Consular functions do include performing the duties of a notary, civil registrar and other similar duties. This means that at the consulate of any country you can notarize a document or order and receive a repeated document at the registry office. But many people cannot get to the consulate for many reasons: the number of consulate staff is limited, and it is not able to accept everyone; some applicants live too far away, some cannot wait in a months-long queue, and some are not recommended by their status to visit the consulate of the country from which they fled. There are many reasons for not visiting the consulate, but the problems need to be solved. And there is a solution.

The Hague Convention of October 5, 1961 abolishes the requirement for legalization of foreign public documents. In accordance with Article 3 of this document, the only formality that can be required to certify the authenticity of the signature, seal or stamp affixing this document is the affixing of an apostille by the competent authority of the state in which the document was created.

Nevertheless, our compatriots everywhere have problems with the use of powers of attorney drawn up in a makeshift manner. And that's why. An apostille, as stated above, only certifies the authenticity of the signature of the person signing the document, but does not in any way certify or confirm the contents of the issued document. At the same time, it is the content of the document that plays a decisive role in the question of whether your power of attorney will be accepted or not. And an apostille, no matter how solid and fundamental it may seem, is, alas, not a panacea for non-acceptance of your power of attorney.

What is this panacea? Only a legally correct document that meets the requirements of the legislation of the country in which it will be used, not only in form, but also in content.

An insignificant number of people in America (or in any other country) provide document preparation services for foreign countries on a professional basis. Social networks are teeming with recommendations on how to make a power of attorney yourself. However, no one tries to remove their appendicitis on their own, except, perhaps, for the world-famous case that occurred during the 6th Arctic Expedition in 1961, when 27-year-old surgeon Rogozov, with the support of a meteorologist and mechanical engineer, personally removed his appendicitis. In fairness, it must be said that this case is unique and has gone down in the history of world medicine for centuries.

So, what is a power of attorney? A power of attorney is not just a homemade piece of paper with a notary stamp next to the signature and an apostille on top. No, such a masterpiece will not be accepted from you, and you will waste your money, effort and faith in the law. No, a power of attorney is a document according to which the authorized person receives the right to represent the interests of the principal before third parties. And these same third parties should not have any doubts about the intentions of the principal.

On the subject: Why an expert in Russian law is so necessary in the USA: the story of Karina Duval

The advantages of notarization of powers of attorney by consuls abroad are obvious. By contacting the consul, you can avoid additional costs for translation and legalization of the document, since the power of attorney will be ready for use immediately. In addition, information about powers of attorney certified in foreign institutions is entered on the portal of the country’s notary chamber.

Disadvantages of applying to the consulate - there is a queue for many months in advance: by the time you finally draw up the necessary document, there is a risk of missing the deadline for entering into an inheritance, losing buyers for the apartment, not receiving an important letter that is stored in the post office and its they won’t give it away without a power of attorney, you’ll be late in paying taxes, you’ll lose in court, and much, much more. Not to mention that people living far from Washington or New York need to take time off to get to the Russian consulate. Well, the main danger awaits those who are awaiting political asylum: for them, visiting the consulate of the country from which they fled could be fatal.

The Hague Convention of 1961 comes to the aid of all those who cannot or do not want to contact the consulate, which allows you to issue any document without contacting the consulate. And in this case, not only the content of the power of attorney will be significant, but also the identity of the notary who certified it.

There is a huge difference between notaries in the countries of the former USSR and a notary in the USA. Few people think about it, but a notary in the countries of the former USSR is a professional lawyer. This person has a diploma, status, knows the law and knows how to apply it. He finds out the will of the principal, asks him the right questions, correctly interprets his wishes, creating a legally significant document from a sometimes incoherent story.

Photo from the personal archive of Karina Duval

US law does not require notaries to have legal knowledge. Any person legally residing in the country over 18 years of age can become a notary in the United States. He is not legally allowed to give legal advice or draft documents. In the USA, this is the job of a lawyer. And drafting documents for abroad is the job of a foreign lawyer. Only a well-drafted document, certified by a professional lawyer-notary, will ultimately be accepted in most countries with which we are working, which primarily includes Russia. An apostille only gives legal force to official documents outside the host state. Bodies authorized to issue an apostille are required to maintain a book of records or a card index in which they register the apostilles they have issued, and therefore each issued apostille can be easily verified.

That is, in order for a power of attorney issued abroad to have legal force, it must be issued by a professional lawyer and then legalized by affixing an apostille. Currently, the apostille is the most common way to legalize foreign documents, because most countries in the world have joined the Hague Convention, and the need for consular registration of documents or consular legalization has long disappeared.

It should be borne in mind that a representative cannot make transactions on behalf of the represented person in relation to himself personally, as well as in relation to another person whose representative he is also at the same time, except in cases provided for by law. In addition, it is not permitted to perform actions through a representative that, by their nature, can only be performed personally.

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The principal has the right to issue a power of attorney with any validity period. A power of attorney that does not specify a validity period will be valid for one year. But a power of attorney that does not indicate the date of its execution is void, and even if you have an apostille, such a power of attorney will not be accepted from you. We do not recommend draw up powers of attorney for long periods, because everything changes, including the nature of relationships between people. Revoking a previously issued power of attorney is always more difficult than issuing a new one.

Karina Duval's office, a licensed legal consultant, provides highly professional legal and notary services and delivers your documents to any jurisdiction where they will be used.

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