Appointing a Foreign Agent or Representative: Power of Attorney

To appoint an agent or representative in another country, you usually sign a power of attorney that names them and lists what they may do for you. A company signs through its directors. If a foreign authority, registry, bank or court will rely on it, a notary witnesses the signing and confirms the signatory's authority, and DFAT then legalises it.

Key takeaways

• The agency or distribution agreement sets the commercial deal; the power of attorney is what the agent shows to third parties.
• The law of the country where the power will be used usually decides whether it works, so get the wording from a local lawyer or the agent.
• List the powers specifically. Many foreign offices refuse a power that only says "all matters".
• For a company, the notary checks who may sign, usually from an ASIC extract, the constitution and a board resolution.
• The notary certifies the signing, not whether the appointment is lawful or wise.
• Plan how the power ends: an expiry date, and a signed revocation sent to everyone who relied on it.

Why do you need a power of attorney as well as an agreement?

When an Australian business takes on an agent, distributor or local representative overseas, two different documents are usually involved. The first is the contract between you and the agent: territory, commission, targets, termination. That is a private arrangement, and in many countries nobody outside the relationship ever reads it. The second is the document the agent carries to the outside world, so that a customs office, product regulator, land registry, court or bank will deal with them in your name. That is the power of attorney.

Keeping them separate is useful. The agreement can stay confidential, and the power can be short, precise and easy to replace. It also means the power can be revoked on its own if the relationship ends, without reopening the whole contract. Our guide to documents for entering a new export market covers the wider set-up paperwork; this page is about the power itself.

The same logic applies to individuals. If you live in Australia and need someone in another country to collect documents, sign a lease, deal with a bank or represent you in a registry, you appoint them by a power of attorney, and they show it to whoever they deal with.

Agency agreement, letter of authority or power of attorney?

Foreign offices use these terms loosely, and the request you receive may not use the term your lawyer would. The table sets out how they usually differ. Where the receiving body names a document, give it exactly that document, in its format if it has one.

Document	What it does	Who sees it	Usual formality
Agency or distribution agreement	Sets the commercial terms between you and the agent	The two parties, and a registry in some countries	Signature; some countries require registration
Letter of authority	Authorises one named person for one task or matter	The office dealing with that task	Often a signed letter on letterhead; sometimes notarised
Specific power of attorney	Grants listed powers for a defined purpose or period	Every third party the agent deals with	Commonly notarised, and apostilled or legalised
General power of attorney	Grants broad powers to act for you	Every third party the agent deals with	Commonly notarised; some countries restrict or refuse it

What should the power of attorney say?

The power will be read by officials in another country, under their own law, and often in their own language. For that reason the most reliable wording comes from a lawyer in that country, or from the agent, who will know what their customs office or registry accepts. A general Australian power of attorney form is made under the law of your state or territory for use here, and is often the wrong starting point. Whoever drafts it, check that it covers these points.

• The parties, identified exactly. Your full name or company name with its ACN, and the agent's full name, nationality, date of birth and passport or national ID number, or their company's registration number.
• The powers, one by one. For example: to lodge and sign product registration applications with a named regulator; to clear goods through customs; to receive notices; to open a bank account. Many foreign officials read a power narrowly and will not accept an act that is not listed.
• Limits. Whether the agent may sign contracts, receive money, give guarantees or sell assets. If not, say so.
• Substitution. Whether the agent may pass some or all powers to another person, such as a customs broker or local lawyer.
• Duration. A fixed end date, or a statement that it lasts until revoked. Some receiving bodies prefer, or insist on, a stated period.
• Language. Bilingual powers, with English and the local language side by side, are common. Our guide to notarising a foreign-language document explains how the notary handles a text they cannot read.

Whether the power is effective, and what the agent can lawfully do with it, depends on the law of the country where it is used. That is a question for a lawyer there. The notary's role is the signing, described below.

Who signs for an Australian company?

An Australian company usually signs through its officers: two directors, a director and the company secretary, or a sole director where the company has only one. A company may also use a common seal if it has one, witnessed as its constitution requires. Australian law now allows companies to sign many documents electronically, but a foreign registry or court may still expect a wet-ink signature before a notary, so check before choosing that route.

A foreign office will not take the company's word for who may sign. It relies on the notary to confirm it. The notary usually asks for a current ASIC company extract showing the officers, the company's constitution if it limits signing authority, and often a board resolution approving the appointment of the agent and authorising named people to sign the power. Our guide to notarising a board resolution explains how that resolution is prepared, and the page on company versus individual notarisation covers the extra checks a company signing involves.

If one of the signing directors is overseas, the options change. They may be able to sign a counterpart before a notary in their own country, or at an Australian embassy. Our guide for when a signatory cannot attend sets those options out.

What does the notary certify?

The notary identifies each signatory from original photo identification, confirms they have authority to sign for the company, watches them sign, and attaches a notarial certificate recording those facts. Where the receiving country expects it, the certificate can also state that the company exists and that the signatories hold office, based on the records the notary has examined. The notary also considers whether each signatory understands the document and signs freely, and may decline to act if not.

What the notary does not do is certify that the appointment is lawful in the other country, that the agent is trustworthy, or that the powers are appropriate for your business. Nor does the notary draft the power unless separately engaged to. The certificate is about who signed and on what authority.

Does it need an apostille or legalisation?

If the receiving office asks for it, yes. Only DFAT legalises documents in Australia, and a notarised power of attorney becomes a public document it can deal with. DFAT's page on documents it can legalise lists private documents such as powers of attorney among those it accepts once notarised. For a country that is a party to the Hague Apostille Convention, DFAT issues an apostille, which confirms the notary's signature and seal. For a country that is not, DFAT issues an authentication certificate and the country's embassy or consulate in Australia then legalises it. Check the HCCH status table on the day, because membership changes.

Some countries also want the power translated into their language by a translator they recognise, sometimes after it arrives. Others accept a bilingual document signed in both languages. The agent, or the office they will lodge it with, can tell you which.

How do you set it up, step by step?

1. Ask the receiving office or the agent what it needs. The document's name, any set form, the language, and whether it wants notarisation, an apostille or embassy legalisation.
2. Get the wording drafted. Ideally by a lawyer in the destination, listing each power the agent needs and the limits you want.
3. Pass a board resolution. Approving the appointment and naming who will sign the power for the company.
4. Gather the company records. A current ASIC extract, the constitution if relevant, and the resolution.
5. Sign before the notary. Each signatory attends with original photo identification and signs in the notary's presence.
6. Send it to DFAT. For an apostille or authentication, then to the embassy if the country needs legalisation.
7. Send the original to the agent. Keep a scan, and a note of every office they lodge it with.

How do you end the appointment?

Businesses often spend care on appointing an agent and none on ending the appointment. A power of attorney held by a former agent can still be shown to a bank or registry that has not heard the relationship is over. When you end the arrangement, sign a formal revocation, notarised and legalised in the same way as the original if the offices that relied on it will expect that, and send it to the agent and to every office they lodged the power with. Ask for the original power back. If the power had a fixed end date, diarise it, and prepare a replacement in time if the relationship is continuing. The legal effect of revocation in the other country is, again, a question for a lawyer there.

Common mistakes to avoid

The most common mistake is signing a general Australian power of attorney form and expecting a foreign customs office or registry to accept it. The second is vague powers: "to handle all our business in the territory" is the kind of phrase officials reject, because it does not say what the agent may sign. The third is arriving at the notary without evidence of authority, such as a current ASIC extract, which usually means a second appointment. The fourth is forgetting the agent's identification details, so the foreign office cannot match the person in front of it to the person named in the power. For individuals appointing a relative, our guide to powers of attorney that cross borders covers the capacity and revocation issues that arise.

Here is an illustration, not a real case.

A Perth skincare company appoints a distributor in Indonesia to register its products and clear shipments. The distributor's lawyer sends a bilingual power of attorney listing each power. The company's board passes a resolution approving the appointment and naming two directors to sign. Both directors attend the notary with their passports and a current ASIC extract, and sign. The company checks the HCCH status table, sends the notarised power to DFAT for an apostille, and couriers the original to Jakarta. Two years later, when the distribution ends, it signs a notarised revocation and sends it to the distributor and the regulator.

In short

An agent or representative overseas acts for you by power of attorney, alongside any commercial agreement. Get the wording from the destination, list the powers specifically, and have the company's authorised officers sign before a notary with evidence of their authority. DFAT then adds an apostille or authentication, and an embassy legalises it where the country is outside the Hague Convention. Plan how the power ends before you sign it. Our power of attorney and legal declarations page explains how these documents are handled.

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Appointing an agent or representative overseas? Send us the draft power and the receiving office's instructions, and we will explain each step before you book.