Giving Power Of Attorney To Your Overseas Lawyer
When you instruct a lawyer abroad, they will often suggest that you give them Power of Attorney so that they can undertaken certain actions on your behalf.
But what is a power of attorney? Is this necessary? What are the risks?
What is a Power of Attorney?
A Power of Attorney is a written permission given by you ‘the donor’ to a third party (such as your lawyer) known as ‘the attorney’ which legally authorises the attorney to carry out certain acts on your behalf.
It is usual for lawyers dealing with clients overseas to suggest that you sign a Power of Attorney allowing them to deal with matters on your behalf.
A Power of Attorney will often be the most practical way of allowing your overseas lawyer to undertake tasks and sign documents on your behalf so you don’t have the expense and inconvenience of having to authorise every arrangement separately or travel to the country whenever something needs to be done in person.
Powers of Attorney are particularly helpful in relation to overseas property transactions (eg sales/purchases/transfers), cross border litigation matters, overseas inheritance cases and corporate transactions as it is usually more convenient and practical for your lawyer to carry our the numerous tasks related to these matters on your behalf.
For example, a Power of Attorney for the purchase of property will often be used to allow the lawyer to open, close and operate a bank account on your behalf, arrange utilities, pay taxes, submit forms to the relevant authorities and deal with any completion or post completion matters on your behalf. It would clearly be very inconvenient for you to have to physically deal with each of these arrangements individually.
Is it risky?
Giving someone Power of Attorney has legal consequences and does involve an element of risk. You are essentially giving someone the legal right to act on your behalf. You are responsible for all acts that your attorney does on your behalf (provided they are within the scope of the Power of Attorney) as if you had done these yourself.
It is therefore vital that the attorney you instruct is a reliable and reputable professional who will follow your instructions strictly and with professionalism and integrity.
What is included in a Power of Attorney for use overseas?
It depends on the transaction or legal matter for which the Power of Attorney is required.
It is usual for the Power of Attorney to give the donor quite wide powers to enable them to deal with the transaction any matters additional or unforeseen matters that may arise.
However, the scope of the power of attorney can be limited to only very specific matters if you wish.
How long do they last for?
Although a time limit or an expiry date for the Power of Attorney can be included, it is not usual for practical reasons, for example it would be very inconvenient if the power expired before the transaction for which it was given was completed.
It will depend on the laws of the country in which the power is being used as to the circumstances in which the Power of Attorney would be automatically ended. Events such as insolvency, or the death of either the donor or the attorney would usually mean that the power ceases.
The attorney is free to resign from his appointment at any time and the donor is free to revoke the power at any time.
In order to revoke the power of attorney the donor would usually need execute a Deed of Revocation of Power of Attorney authorised by a notary.
Once the transaction for which the power was given has been completed, you should arrange to revoke the Powder of Attorney and also ask for the original Deed of Power of Attorney and any official copies that may have obtained to be returned to you.
How do you arrange a Power of Attorney?
Your overseas lawyer will usually prepare a bilingual Power of Attorney for you. This must then be signed by you in the presence of a notary either in the country for which the power is required or in the UK.
If the power is signed in the UK it will need to be signed in the presence of an appropriate notary (the relevant consulate will be able to assist you with finding an appropriate notary).
The identity of the donor will need to be verified by the notary wherever the Power of Attorney is signed so you should take your passport with you when you go to the notary to sign the document.
If the Power of Attorney document is being signed with a notary in the UK, it will also need to be legalised with The Hague Convention Apostille by the Legalisation Department of the Foreign and Commonwealth Office in order to be valid for use in the country in which it is required.
How much does a Power of Attorney cost?
If the Power of Attorney has been prepared by your overseas lawyer, the notary should only charge for witnessing the execution of the documents. The notary fees will depend on the country and area where the notary’s offices are based. Your lawyers fee for preparing the document should have been agreed at the outset. Where the Power of Attorney is signed in the presence of an English notary the notary charges are usually in the region of £100-150 per document.
As stated above, if the Power of Attorney is signed in the UK it will need to be legalised by the Foreign and Commonwealth Office in order to be valid in the country in which it is to be used.The cost of this is currently £30 per document (if you pay online- slightly more for other payment methods). Your English notary may be able to arrange this for you however they may charge an additional fee for this which is usually around £30-40 per document.
