Why do you need witnesses?
Many clients ask us whether they need to have witnesses for their power of attorney (both General Power of Attorney and Special Power of Attorney) for India. If you find yourself in the same situation, the simple answer is that you should ask your lawyer in India.
Many of the 'standard' forms and templates for the power of attorney that clients show us (either provided to them by their lawyer, by their bank or by a government office) include a place for 1 or 2 witnesses.
If you were to sign these powers of attorney in India, then presumably you would just follow the requirements in the documents and sign it in front of those witnesses. Those witnesses would then include their details (ie, full name and address) and sign in the spaces provided once you have signed in front of them. Signing in their presence is generally necessary as that is the obligation of the witness to verify that you have signed in front of them.
But what if you are signing the power of attorney here? Do these same requirements apply when you are living in Australia and you are signing the power of attorney for India? Your lawyer in India should be able to advise you on this specific requirement.
Signing the Power of Attorney in Australia
In most cases, if you are living in Australia but you are signing the power of attorney to be used in India, then you would need to sign that power of attorney in front of a notary public (perhaps in addition to the witnesses).
The General Power of Attorney and the Special Power of Attorney must be attested. While the word 'attested' does not clearly indicate what needs to be done to the document, generally this will mean that you must sign the document in front of the notary public and the notary public certifies that you identified yourself by photograph identification and that you signed the document in front of the notary public.
In addition to notarisation, sometimes the notarised power of attorney must also be attested by VFS on behalf of the Indian Consulate. If you are not sure, then these are the questions that you need to ask your lawyer in India. If you have been asked to have your document attested by VFS, then you will also need to check the VFS requirements on their website (ie, there are checklists for documents such as the power of attorney) and ensure that you satisfy them before you visit VFS. These requirements could also include having the notarised power of attorney stamped with an apostille from the Department of Foreign Affairs and Trade (but if you want to know more about this, maybe look through some of the other articles that we have written on this blog).
Get the right advice
Whatever transaction you are planning in India, whether it is to do with property dealings, financial and money matters, or court and legal action, your lawyer who is assisting you with those things will be the best person to advise you as to the specific requirements that they must satisfy in order for your document to be accepted in India. If you do not satisfy these requirements, then you run the risk of having your document rejected and starting all over again - not only a waste of money but a waste of time as well.
Unfortunately, in our experience, many clients do not obtain the right (or clear) advice from their lawyer in India. If this happens to you too, there is not much that we can do to assist in this process and it is up to your lawyer in India to either inform themselves of the specific requirements of whatever they are doing for you - in the context of you being in Australia but signing documents for India - or potentially refer you to another lawyer in India who might be more familiar with the requirements.
Some clients have approached us with documents, like the power of attorney, prepared by lawyers in Australia. We generally do not recommend doing that if those lawyers are not familiar with the laws or the process and procedures in India (keep in mind that there can also be differences between each state and various localities as well as various courts and government offices). A lawyer in Australia is going to be so detached from whatever you are actually doing in India that they are only really guessing what is required without actually knowing what is required. Accordingly, your best advice is always going to be from your lawyer in India especially the lawyer who will actually be using the power of attorney to assist you in whatever you are hoping to achieve in India.
Who can be your witness?
We only provide the services of the notary public and not of other witnesses. If you need to have additional witnesses, you will need to bring them with you - preferably someone that you know rather than a 'stranger'. Your witnesses will also need to be able to properly identify themselves (ie, passport) and be present at the same time as you when you come for your appointment. When we notarise your document we will also confirm that you AND your witnesses both appeared and signed the document in our presence.
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.
