How to properly issue a power of attorney while abroad

The most common request in our office — issuing a power of attorney. Let's figure out what it is.

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A power of attorney is a written authorization issued by one person to another to represent them before third parties.

The power of attorney is made in writing and must contain:

1. document title;
2. an indication of the place of its execution, and in the case of certification of a power of attorney outside the premises of a notary office, the address of certification;
3. the date of its execution (the day, month and year are indicated in words);
4. information about the person represented and the representative;
5. signature of the person represented.

In addition, it may contain:

• the period for which the power of attorney is issued;
• indication of the right or prohibition of sub-delegation.

The law applicable to the relationship between the principal or representative and a third party shall, in particular, determine:

1. The presence and scope of powers of the representative;
2. Consequences of the representative exercising his powers;
3. Requirements for the content of a power of attorney;
4. Validity period of the power of attorney;
5. Termination of a power of attorney, including the consequences of its termination for third parties;
6. Admissibility of issuing a power of attorney by way of re-delegation;
7. Consequences of concluding a transaction in the absence of authority to act on behalf of the principal or in the event of exceeding these powers, including in the event of subsequent approval of such transaction by the principal.

In the power of attorney itself, the principal may determine the law of the country applicable to the representation, unless otherwise provided by law.

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For certain types of agency relationships, the law establishes special legal regulations. For example, if a representative is authorized to conclude a transaction involving real estate, and the transaction or the creation, transfer, limitation, or termination of rights thereunder is subject to mandatory state registration, the law of the country where the real estate is entered in the state register applies. If a representative is authorized to conduct a case in court, the law of the country where the trial is taking place applies.

It should be taken into account that the form of a power of attorney intended to perform actions abroad is determined by the same rules as the form of a transaction: a power of attorney whose form complies with Russian law will be valid if the personal law of at least one party is Russian law.

When certifying a power of attorney to perform actions abroad, it is necessary to take into account the specifics of legal regulation in the country where the power of attorney is valid, which will ensure the effectiveness of the power of attorney in terms of the actual achievement of the desired results by the interested parties.

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Before performing the notarial act of certifying a power of attorney, the notary is obligated to explain to the applicant the legal consequences of issuing the power of attorney, so that legal ignorance cannot be used to their detriment. This is why every foreign power of attorney is carefully reviewed in Russia, as it is not simply a text taken from the internet or even custom-written for your situation by a Russian notary. No, a power of attorney is not only a legally correct text, but also a legally correct execution, with every formality observed, right down to the notary's explanation of the principal's rights and obligations—something that can, of course, only be expected from a professional lawyer authorized to act as a foreign notary.

When certifying powers of attorney, it is important to remember that bankruptcy imposes a number of restrictions on transactions, including the issuance of powers of attorney. When certifying a power of attorney on behalf of a minor between the ages of 14 and 18 with limited legal capacity, acting with the consent of their legal representatives (parents), documents confirming the status of the person represented and the authority of the legal representative (birth certificate) are required. Similar documents are required from the legal representative when issuing a power of attorney on behalf of a minor under the age of 14.

If the principal is unable to personally sign the power of attorney due to illiteracy, physical disability, illness, or any other reason, another citizen (a signatory) may sign the power of attorney at their request, in their presence, and in the presence of a notary. The signatory must state the reasons why the document could not be signed by the principal personally, which must be reflected in the certification. It is not recommended to use a signatory who does not have sufficient command of the language in which the power of attorney is drawn up.

Information regarding the certification of a power of attorney must be entered into a special register by a notary. If a foreign notary fails to maintain a register of issued powers of attorney, such a power of attorney may be refused due to the impossibility of verifying it.

A power of attorney may only be issued for lawful actions, and its content may not conflict with legal requirements. The powers delegated to the representative must be lawful, enforceable, and specific. The powers set forth in the power of attorney may not exceed the legal capacity of the represented party as provided by law. Therefore, the request "give me a general power of attorney so I can do everything under it" is unfeasible. A general power of attorney is a general, non-specific power of attorney with a very limited range of actions.

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The legislation provides for specific requirements regarding the content of powers in a power of attorney, for example:

1. In the power of attorney for making a gift, the representative must name the donee and indicate the subject of the gift.
2. The power of attorney for accepting an inheritance or refusing an inheritance must specifically provide for the corresponding authority.
3. The authority to conduct bankruptcy proceedings must be specifically stipulated in the power of attorney, in particular the right of the representative to sign the application for declaring the debtor bankrupt and to vote on the issue of concluding a settlement agreement.
4. A power of attorney for representation in court must be drawn up in accordance with the requirements contained in the law, including the Civil Procedure Code.
5. A power of attorney for representation at the stage of enforcement proceedings is drawn up in accordance with the requirements of the Law “On Enforcement Proceedings”.
6. Representation in the civil registry office must provide special authority to obtain duplicate certificates.
7. If the power of attorney provides for authority over specific property, then it is necessary to specify the individual characteristics of this property.

The most common misconception I encounter daily is clients' desire to obtain a consular power of attorney. This desire stems from the fact that somewhere, at some point, someone's apostilled power of attorney was not accepted in Russia. In the vast majority of cases, this problem has nothing to do with the apostille. In 99,9% of cases, the problem stems from improper execution of the power of attorney, for example:

• the powers provided for in the power of attorney are not legal, enforceable and specific;
• the notary did not explain to the principal his rights, obligations, and legal consequences of the issued power of attorney;
• the identity of the principal was not properly established, and his legal capacity was not verified at all.

In fact, contacting the consulate is one of the options, fortunately, not the only one. Our office issues powers of attorney that can easily pass through any authorities and with the help of which most issues can be effectively resolved.

Our office is one of the few in New York City that provides professional legal services in the field of foreign law.

You can contact us by appointment at: 1400 Ave Z, Office 502, Brooklyn, NY 11235. Appointments by email: [email protected].

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