India – Powers of Attorney – the correct process! – Time to make a stand?

India – Powers of Attorney – the correct process! – Time to make a stand?

We see many people who require our Notarial services to witness and certify Powers of Attorney for use in India.

Clients attend here with their document received in hard copy or by email from their Lawyers in India, and with instructions about what further legalisation stamps are required.

Often, the instructions are outdated and do not comply with the International Law which is in place – and has been since 2008!  Long enough you would have thought, for Indian lawyers to come to terms with it.

India has signed the Hague Convention 1961 – it signed in 2008 – and the correct procedure is that the Power of Attorney should be executed in the presence of a Notary Public and also two independent witnesses and then it should go to the Foreign Office in Milton Keynes to obtain the Apostille stamp [an Apostille is a further stamp which confirms to India that the document has been dealt with by a Notary] – this is a postal service and no personal attendance is allowed.  It usually take around 3-4 days to obtain the Apostille stamp.

However, this is still often not understood by the Indian lawyers in India.

What we still tend to see is that the client has been instructed to execute the document with the Notary plus two witnesses and then the request is for the client physically to take the document to the Indian High Commission in Birmingham for them to stamp the document also.

This is outdated and does not follow the law and does not comply with the Hague Convention – however trying to get this message across to India has been difficult! In addition, if the client is not an Indian citizen, the High Commission will no longer stamp the document in any event.

It is very frustrating that the majority of Indian advisors seem to require that the paperwork they receive is in accordance with the pre-2008 law. Presumably this is done on the basis that this is what their Dad taught them?

It just may be that the tide is turning now. There are one or two encouraging signs that the message might just be getting through and this is encouraged by an increasing number of guidance messages on official Indian websites. Here is one of the first of them from Punjab about four years ago!

For the client, this is still a problem. The question is, Do I stand up for the correct procedure, or do I just do it the way I have been asked?

Often clients do not have the time to argue the point with their adviser/lawyer in India: they simply want to provide a document which will be accepted.  Time is usually of the essence and delaying the procedure to argue the point is not an option for clients.

The recent decision of the Indian High Commission in Birmingham that they will not stamp the documents of non-Indian citizens is quite helpful in all this. More helpful still would be a refusal to counter-stamp any notarised documents at all, and this may be their next step.

I have written previous blogs on this subject which you may find of interest – see links here and here

As ever, I am in Leeds ready to assist, please do get in touch whenever you have a legal document, or question, which has any foreign element or phone me or Louise +44 (0) 1138160116