The most common request that we receive is to notarise the power of attorney (both general power of attorney and special power of attorney) for India.
In this article, we attempt to answer some of the most commonly asked questions about the power of attorney for India.
What is a power of attorney?
A power of attorney is a legal document in which you authorise someone to act on your behalf. It's basically a legal letter of authority but prepared in a more formal manner. The person that you appoint is called your 'attorney' and when you authorise them to act on your behalf, generally this means you authorise them to make decisions and sign any documents for you. You may need to appoint an attorney in India if you cannot travel to India to do things yourself.
What is the power of attorney used for?
The power of attorney is generally to authorise someone to handle financial matters, property dealings, court cases or other legal matters on your behalf. For example, many of our clients use a power of attorney to:
- authorise someone to deal with banks for home loans;
- authorise someone to buy or sell property;
- authorise someone to operate bank accounts;
- authorise someone to buy or sell cars or motorbikes;
- authorise someone to trade in shares;
- authorise someone to access information or records
What kind of things can I authorise in my power of attorney?
Who prepares the power of attorney?
Different countries have different requirements or forms that must be followed in order for the authority to be valid or for the power of attorney to be accepted and so you need to check the requirements of the specific country (and sometimes the specific state).
Also, depending on where you intend to use the power of attorney, the recipient may also have different requirements. For example, a courthouse or a government office may have different expectations from a bank or private business, and if it's intended to be used to deal with your neighbour or an individual, they may have different requirements from private businesses or government departments and authorities.
If you're using the power of attorney in India, then the power of attorney should be prepared in India according to the law and the specific requirement of the power of attorney. Accordingly, we encourage our clients to consult their lawyer or whoever will be assisting them with whatever they need to do. Your lawyer in India can prepare the power of attorney on the form, in the format and with the contents that may be required for the power of attorney to be legally valid and accepted in India for whatever you're doing or intending to achieve.
Do you have any templates for the power of attorney?
Yes, there are some templates available - and some links from previous articles in this blog or on our website https://www.notary-parramatta.com.au/. However, you should always be careful when using a template document. A template is really only a starting position and it may not necessarily be relevant to what you specifically need. Considering that the powers granted by the general power of attorney or the special power of attorney has a significant legal effect, you should always read the power of attorney carefully to fully understand everything that you're doing by signing it (especially when you are having it witnessed by a notary public).
Do I need special paper, legal paper, bonded paper or stamped paper for my power of attorney?
For legal documents used in India, such as the power of attorney, it's common for them to be prepared on stamped paper. Stamped paper is proof of prepaid duty. Generally, you must pay duty for the power of attorney and so preparing the power of attorney on stamped paper is common in India. However, there is no such thing as stamped paper available in Australia (especially stamped paper that's recognised in India).
In fact, some of our clients have attached Australian postage stamps to their documents, but this doesn't make sense as this kind of stamp is not related to stamp duty (or duty) and it's an Australian stamp, not an Indian stamp and in no way represents any evidence of proof of duty paid in India for Indian purposes. It sounds silly doesn't it, but that's what some clients have done because they didn't obtain the right advice from the right person. Most likely they just listened to something that they heard from someone or read from the internet and followed it blindly, both wasting time and money in doing the wrong (absurd) thing without making any attempt to find out what's the right thing to do.
For most clients, their lawyer prepares the power of attorney in an electronic document and that document is emailed to them to print on normal A4 paper (which is the standard paper available in Australia). Duty is then only paid once the signed and notarised power of attorney lands in India.
Bottom line - ask your lawyer in India. If your lawyer believes it's easier or more convenient to prepare the power of attorney on stamped paper in India and then send the original document to you to sign and have notarised, then that's what you should do. It actually makes things very easy but naturally takes longer and could be a little more expensive in terms of courier/postage charges compared to having an electronic document emailed to you.
What documents do I need to bring with me to have my power of attorney notarised?
How do we notarise your power of attorney?
Do I need an apostille?
Technically, yes. If you're signing a power of attorney in Australia but you're using it in India, then your power of attorney should be notarised and then stamped with an apostille. The apostille is a stamp issued by the Australian government in accordance with the international treaty known as the Apostille Convention. Countries that are signatories to the Apostille Convention will recognise the apostille stamp issued by other member countries. Both Australia and India are signatories to the Apostille Convention which means documents from Australia to be used in India should be stamped with an apostille to be legally valid.
In saying this, it's our practical experience that the majority of clients who have their documents notarised by us send those documents to India without any other stamps. While it may not be technically correct, because it should be stamped with an apostille after it's been notarised, if the document with notarisation only is accepted in India then it's already achieved its purpose without the added cost or delay of the apostille process.
If you're not sure whether your power of attorney will be accepted in India without an apostille, you should contact your lawyer in India for guidance. Sometimes you may benefit from just asking what the requirements are instead of directing your lawyer to formality arising from the Apostille Convention.
Do I need a signature from the Indian High Commission?
Technically, no. Since Australia and India are both signatories to the Apostille Convention, only the apostille is required and no further involvement by the High Commission or Consulate is required. However, in saying that sometimes your lawyer or whoever you're dealing with in India may specifically request that your document is attested by the High Commission or Consulate (either as a peace of mind or because they're not familiar with international treaties or formalities arising from the Apostille Convention). If that's the case, there's no 'harm' in submitting your documents to VFS (who act on behalf of the High Commission/Consulate) for attestation however VFS will also ask you to sign/acknowledge their disclaimer that they've also advised you that due to the Apostille Convention, attestation by the High Commission/Consulate is not required in order for your power of attorney to be legally valid in India.
Do I need to have witnesses?
As a notary public service, we will notarise your power of attorney after we witness you sign it. However, in many cases, especially if you are using a template from India, there may seem to be a specific requirement for you to also sign in front of other witnesses (often shown as two witnesses). If you were signing the power of attorney in India, then you may need to have two witnesses but you may need to check whether that requirement still exists for signing the power of attorney in Australia. For the majority of our clients, we act as the only witness/notary to the signing of the power of attorney. Sometimes if a client wants to have other witnesses present, then they will need to make arrangements for those witnesses to either sign before or after the notarisation. We can also witness their signature as well as their witnesses' signatures, however, this would mean that they would have to bring their witnesses with them (and this also changes the cost of the notary service). When in doubt, always refer back to your lawyer in India for guidance.
Does my attorney need to be present?
Do I need to have a photograph?
Some power of attorney templates leave a space for you to attach your photograph. Sometimes you also need to sign across your photograph (ie, half on and half off). In all cases, if you're signing the power of attorney in our presence and you include your photograph (whether you sign it or not), we'll still stamp your photograph as confirmation that you're the person who signed the power of attorney in our presence.
Do I need to have a photograph of my attorney?
Do I need to have a thumbprint?
Occasionally, some clients have been asked to also include their thumbprint on the document (ie, generally this is in reference to their left thumb with black ink). We are able to accommodate this request however we aren't able to say whether your specific power of attorney for its specific purpose requires your thumbprint. If you're using a template, often the template will indicate that a thumbprint is required but if you're not sure then you should ask your lawyer in India.
(On rare occasions, we've had clients who have had to put fingerprints and thumbprints from both hands - not sure why).
What next?
To obtain a quote on our notary public services for India, please visit https://www.notary-parramatta.com.au/notary-fees/.
Acknowledgements
This blog is supported and maintained by Phang Legal. Phang Legal is a leading provider of notary public services in Sydney. With offices conveniently located in Parramatta, Phang Legal supports and services the Indian community across Sydney with readily available and easily accessible notary public services at highly competitive rates.
For more information regarding notary public services for documents going to India, view our notary publications at https://www.notary-parramatta.com.au/jurisdiction/india-notary/.
Frequently asked questions regarding our notary public services can also be found at https://www.notary-parramatta.com.au/faqs/.
For Hindi to English translation services by NAATI accredited translators, see https://hindi-naati-translation.blogspot.com.au/.
Ern Phang
Notary Public
Ern Phang is the solicitor director of Phang Legal and a notary public. Ern regularly writes about his experiences as a notary public, including the kinds of problems and solutions that his clients face when sending documents to India.
IMPORTANT: the information in this article is correct at the time of publication, however the law constantly changes. This means you should always refer to the most recent articles because we try to update this blog on a regular basis with the most current information.
