Notarising Powers of Attorney for India
Key Legal Issues
When notarising a Power of Attorney (POA) for use in India from Victoria, the principal legal issues are:
Ensuring the POA is validly executed and notarised in accordance with both Victorian and Indian requirements.
Satisfying any additional authentication or legalisation steps (e.g., apostille, consular attestation) required for the document to be recognised in India.
Addressing specific Indian state or institutional requirements, which may vary.
Relevant Legal Principles and Practice
1. Preparation of the Power of Attorney
Drafting: It is best practice for the POA to be drafted by an Indian lawyer to ensure compliance with the relevant Indian state’s requirements. Australian notaries generally do not draft Indian POAs except in exceptional circumstances, and cannot guarantee Indian acceptance if they do so.
Content: The POA should clearly state the powers granted, the details of the principal and attorney, and any other particulars required by the relevant Indian authority (e.g., property details, bank account information).
2. Execution and Notarisation in Victoria
Execution: The principal (the person granting the power) must sign the POA in the presence of a Notary Public. The notary will verify the principal’s identity and capacity.
Witnesses: Many Indian POAs require two additional witnesses (over 18, not related to the principal). Witnesses must provide their full name and address; some Indian states (e.g., Punjab) may require passport details or residential addresses. If the POA is signed at a notary’s office, staff may act as witnesses during business hours, but their office address is typically used.
Notarial Certificate: The notary will affix their signature, stamp, and official seal, indicating the date and place of notarisation. The notary’s details must be clear and traceable.
3. Authentication and Legalisation
Apostille: Both Australia and India are parties to the Hague Apostille Convention. Most Indian authorities require the notarised POA to be apostilled by the Australian Department of Foreign Affairs and Trade (DFAT). The apostille certifies the authenticity of the notary’s signature and seal.
Consular Attestation: Some Indian authorities or institutions may require further attestation by the Indian Consulate or VFS Global, even after apostille. This is not always necessary, but requirements vary by state and institution in India.
Stamped/Bonded Paper: Indian law often requires POAs to be executed on stamped or bonded paper. This paper is not available in Australia. The POA may be printed on standard A4 paper and stamped upon arrival in India, or the Indian lawyer may send the appropriate paper to Australia for execution.
4. Additional Requirements
Photographs and Thumbprints: Some Indian states require the principal’s photograph and/or thumbprint to be affixed to the POA, sometimes with the notary’s seal over the photograph.
Supporting Documents: Indian authorities may require certified copies of the principal’s passport or other identification to be attached to the POA.
Application to Practice
Best Practice: Always confirm the specific requirements with the Indian lawyer or relevant Indian authority before execution. Requirements can differ significantly between states, banks, and registries in India.
Notary’s Role: The notary’s function is to witness the signature, verify identity, and certify execution. The notary does not advise on Indian law or the substantive content of the POA.
Record Keeping: The notary will retain a record of the notarisation, including copies of identification and the notarised document, in accordance with Victorian law and privacy requirements.
Caveats and Limitations
Indian Acceptance: Notarisation and apostille do not guarantee acceptance by all Indian authorities. Some may insist on consular attestation or have unique requirements.
Witness Details: If Indian authorities require private residential addresses or passport details for witnesses, the principal must arrange for their own witnesses.
Stamped Paper: If the POA must be on Indian stamped paper, arrangements must be made with the Indian lawyer.
