Powers of Attorney for India – What is the Law – Who is right?
Louise Scratches her Head and Ponders
We at AtkinsonNotary see many clients who need us to notarise a Power of Attorney (“POA”) for use in India. This is excellent and we are of course very happy to assist.
We must have in our records thousands of Powers of Attorneys, which have been successfully used in India since Chris Atkinson first became a Notary in 1993. The thing about them is, very few of them are the same!
We have dealt with thousands of POA documents for use in India and there simply is no consistent guidance as to how these documents should be completed and notarised.
For example below are some points on what we get asked to do- all instructions received from India:-
BUT – they are all different!
Which is correct? You tell me!:
1. Notarise the document with no further witnesses.
2. Notarise the document with two further witnesses in addition to the Notary.
3. Add a photograph of the Grantor.
4. Do not add a photograph of the Grantor
5. Add a copy passport of the Grantor.
6. Do not add copy passport of the Grantor
7. Add copy passports of the witnesses.
8. There is no need for the witnesses to provide identification.
9. Add a photograph of the Attorney. NB the Attorney is usually in India and the Grantor may not have a photograph.
10. Once the POA has been executed and notarised the Grantor is now to take it to the Indian High Commission for its stamp.
11. Once the POA has been executed and notarised it has to be sent to the British Foreign and Commonwealth Office for an Apostille stamp.
12. Once the POA has been executed and notarised then it is good and needs no further stamps can be sent directly back to India.
13. The POA should be signed by the Notary on the left-hand side of the document.
14. The POA should be signed by the Notary on the right hand side of the document.
15. The POA needs to be signed on every page
16. The POA does not need to be signed on every page
17. The POA has to be printed on special size paper
18. The POA has to be printed on special size paper coloured green
19. The POA has to be printed on special size paper which has been stamp duty paid in India
20. The POA may be printed on our usual A4 sized white paper.
And 21 and 22 and on and on and on….
As you can see, so many conflicting ways of proceeding and getting it wrong. Well, not wrong, but it seems that in India being right is not as important as preparing the document in the way the local Lawyer expects to see it. So what to do?
Well in relation to signing the document, our advice is that you should follow the guidance from your adviser in India whether they are right or wrong.
India is a large country and depending on which part of India you wish to deal with then the Lawyers in that area will have their own idea as to how the document should be executed.
The correct procedure however, as a matter of Law, is that India has in fact signed the Hague Convention and therefore documents signed in England for use in India are to be signed before a Notary and two independent witnesses. Once notarised and witnessed the POA then needs to be sent to the Foreign Office for an Apostille stamp (what is an Apostille stamp? – see – link here – to a previous blog and read under the heading “Legalise/Further Legalise/Authenticate”).
The fact that our clients get asked to obtain a stamp from the Indian High Commission once the POA has been notarised is wrong and is outdated – but you try and tell them in India this, you probably will not get very far in trying to change their mind. Unfortunately there are many Lawyers in India who do insist on the High Commission Stamp being obtained!
Chris has a fantasy that some Indian lawyers were taught their practice and procedures by their fathers, years ago, and are not interested in minor trivialities such as subsequent changes in the law.
In conclusion we don’t believe there is one correct way for dealing with POAs for India – and there are so many ways to get it wrong, by which I mean, to get it rejected whether or not it’s wrong.
Our advice is, be pragmatic. Take guidance from your own Lawyer/adviser in India as to the way in which your Power of Attorney should be dealt with in that particular area. Get them to draft the document and email or post it to England.
Basically, don’t bang your head on the wall in the cause of “doing it right” if doing it some other way is what will work.
Remember, if you need to discuss a Power of Attorney for use in India, or if you have any queries on any of the services that we offer then please so not hesitate to email us firstname.lastname@example.org and email@example.com.
Or alternatively please telephone on 0113 8160116 or 07715608747. Please also feel free to visit our website http://www.atkinsonnotary.com