Powers of Attorney That Cross Borders

A power of attorney is a simple idea — one person authorises another to act for them — that becomes complicated the moment the two people, the property and the paperwork are in different countries. The difficulty is not the notarisation. It is that each country decides for itself what a power of attorney must look like and what it can do.

This page explains the principles that govern a power of attorney used across a border, in both directions. It is not a substitute for advice. Where the power concerns land, an estate, or a person who may lose capacity, see a solicitor, and usually a lawyer in the other country as well.

The law of the place of use usually governs

The single most useful principle: a power of attorney generally has to satisfy the requirements of the place where it will be used, not only the place where it is signed.

An Australian-form power of attorney, properly witnessed under Australian law, can be refused by a foreign land registry because it lacks wording, a formality or a level of specificity that registry requires. The reverse is also true: a power drafted abroad may not work in Australia without more.

This is why the practical first step for an outgoing power is to obtain the form or the required wording from the lawyer, registry or bank at the other end. The notary executes the document; the notary does not decide what the foreign jurisdiction requires.

General and specific powers

Common-law systems, including Australia's, are comfortable with a general power that authorises the attorney to do almost anything the principal could do.

Many civil-law systems are not. A registry or notary there may expect the power to name the specific property, the specific transaction, sometimes the price range or the counterparty, and may refuse a general power for a land transfer even though it plainly covers one. Where a foreign form asks for detail that seems excessive, that is usually why. Supply it.

Capacity: the hardest cross-border problem

In Australia, an ordinary (general) power of attorney ends if the principal loses capacity. An enduring power, which continues, is created under state or territory legislation with its own execution requirements.

Across a border, three questions arise that have no single answer:

• Will the other country recognise an Australian enduring power at all? Some jurisdictions have their own regime for continuing powers and may not treat a foreign one as equivalent.
• Will the power survive the principal's incapacity under the other country's law? A power that is enduring in Australia may be treated abroad as an ordinary power that has lapsed.
• Who decides whether the principal has lost capacity? Countries differ on what evidence is needed and who must provide it.

For anyone planning for possible incapacity with assets in more than one country, the usual advice is separate instruments — an Australian enduring power for Australian affairs, and a document prepared under the other country's law for assets there. Whether one instrument can do both is a question for a lawyer in each place, not for a notary.

Foreign powers used in Australia

The incoming direction causes as much trouble as the outgoing one.

Land. Dealing with Australian land under a power of attorney generally requires the power to be registered or deposited with the land titles office in the relevant state or territory, which applies its own requirements. A power made overseas may need to be re-executed in local form or supported by further evidence. Requirements differ by state and territory and must be checked with the land titles office concerned.

Banks and financial institutions. These apply their own policies to foreign powers, and some will ask for their own form regardless of what the foreign document says.

Interstate. Even inside Australia, recognition of an enduring power made in another state or territory is governed by each jurisdiction's legislation, and the position is not uniform.

A foreign power used in Australia will generally have been notarised and authenticated in the country where it was signed — by apostille or legalisation, depending on that country's position. An Australian notary cannot authenticate a signature made abroad.

Revocation and death

A power of attorney generally ends on the principal's death, and can usually be revoked. Across a border, both events have to be communicated to every place the power might be used. A revocation effective in Australia does nothing to stop an attorney presenting the original power to a bank abroad that has not been told.

Revoking a power used overseas may itself need to be in a particular form, notarised and authenticated, and in some systems registered. Ask how revocation works at the time the power is made, not when it is needed.

Where the notary fits

A notary's role in a cross-border power is specific: identifying the principal, being satisfied of capacity and free will, witnessing execution, and preparing a certificate in the form the destination expects. Because a power of attorney hands another person authority over property, it is the document on which notaries are most careful about capacity, independent interpreters and the principal being seen alone.

The practical sequence is covered in How to Notarise a Power of Attorney in Australia.

Common questions

Can one power of attorney cover several countries? Rarely well. Each jurisdiction tends to want its own form, and a single document that tries to satisfy all of them often satisfies none.

Can I sign a foreign-language power of attorney? Only once you understand it, usually through a translation or an independent interpreter. A notary cannot attest that you signed knowingly otherwise.

Does an apostille make the power valid in the other country? No. It confirms the notary's signature and seal. Whether the power is valid and effective there is a matter for that country's law.

Is a power of attorney signed at a foreign consulate in Australia an alternative? Some countries allow their nationals, and sometimes others, to execute documents at their consulate. Whether that route is available and suitable is a question for the consulate.