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?
It really depends on what you need to do. If you have some sort of personal,
business or property dealing in India, then you'll need to have a power of
attorney that properly and sufficiently authorises the person you appoint to
be able to act on your behalf. If your power of attorney is not prepared
properly or somehow limits what powers are granted, then the person you
appoint may not be able to do what you want them to do. This would mean that
everything else you've done in order to appoint them would be wasted. It's
important to get it right to avoid unnecessary costs and delays.
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?
Aside from bringing the actual power of attorney that you want to have notarised, you'll also need to bring your photo identification - we usually ask you to bring your passport as this would be the most universally accepted photo identification document regardless of where you are in the world. Some
clients want to bring their PAN card, Aadhaar card or their OCI card, but as
these documents are not generally recognised as identification documents in
Australia, they must also bring their passport as their primary photo identification document. When we notarise your power of attorney, we'll also
include a stamp to confirm that you've identified yourself by your passport.
How do we notarise your power of attorney?
Generally, the way that we notarise your power of attorney depends on what's
required by your lawyer in India. If there are no specific instructions, then
we'll notarise your power of attorney the same way that we normally notarise
basic legal documents - that is, we'll countersign every page that you sign,
and we'll also put a stamp and seal on the back page or the signing page.
Unless specifically requested, we don't issue a separate notary certificate as
our stamp clearly states that we've witnessed your signature and that you've
proven your identity with your specific photo identification document.
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?
No, generally if you're appointing someone to act on your behalf (ie, your attorney) in India, it's because they're in India - and you're not. This means
when you come to sign the power of attorney, your attorney isn't present and they don't need to be. We generally only witness you (the person giving the power) signed the document in our presence. Occasionally, if your attorney is
with you and they also wish to sign the power of attorney in our presence, we
can witness their signature - but this does not happen in the majority
of requests that we receive.
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?
Your attorney is the person that you're appointing in India to act on your behalf. Some power of attorney templates leave a space for you to include your
attorney's photograph as well as your own. You may also need to attest your
attorney's photograph, however, we wouldn't stamp your attorney's photograph
unless they're present and we're also witnessing them sign the power of
attorney (in acceptance).
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.
