Welcome to my Blog – my first one! March 16th 2009
I am aware I have a lot to learn about the possibilities of blogging. In due course I intend to provide a means of indexing my posts, so that you can search by subject matter. I hope this will be a useful way of providing information – in the meantime, here goes with two points recently arising.
Enduring Powers of Attorney.
In England, the only Power of Attorney you can make which will remain in effect should you lose mental capacity, is a “Lasting Power of Attorney”. It is too late to make a Will once you have died, and similarly it is too late to make a Lasting Power once you actually need one. I think that every adult person in UK should have in place both a Will, and a Lasting Power of Attorney. Please do contact me to discuss this.
But the point I want to raise in this blog, is to look at the question from a Notary’s point of view, that is to say, internationally. In most Countries of the World the concept of a Lasting or Enduring Power of Attorney (one which remains in force even after the writer has lost mental capability) is understood and such a Power can be created validly. The possible problem derives from the fact that each Country has its own rules, and the Power created and valid in one Country is more likely than not UNACCEPTABLE in another Country.
The obvious difficulty is that if your widowed father or mother or single Aunt has retired to Spain or South Africa or anywhere else then, if you are the nearest relative, you might have agreed to be their Lasting Attorney. If they have made a local Enduring power, they may not have realised that the chances are you will wish to look after them here in UK, once they need looking after. Unless you are willing to give up your job and move abroad to be their carer, that is. Once they arrive here in UK the Power of Attorney in your favour will no longer be effective.
The Moral for all of us is – Make a lasting Power valid to be used in the Country you live in and Make Another One at the same time, valid for any country to which your Attorney may wish to move you in the event that you lose legal capacity and need permanent care.
Legalisation for India
If you need your document to be executed in England and to be accepted as valid in India then once I have added my own certificate the document requires to be “further legalised”. Since 14th July 2005, when India ratified its acceptance of the 1961 Convention of the Hague, this further legalisation should be by way of Apostille. That is, I send the paper to the Foreign and Commonwealth office of the UK Government rather than to the Indian High Commission. It is now the Foreign Office stamp which is needed in India not a High Commission stamp. The problem seems to be that no-one has told the Indian lawyers in India! In recent years the legalisation of documents for India has caused all manner of difficulty. A typical problem would be the impasse created by the refusal of an Indian Lawyer or Registry to accept a document adorned with its Foreign Office Apostille. The party in India would demand that the document be presented to the Indian High Commission office as well. Until a short time ago, the High Commission office would refuse to stamp the document, correctly stating that this is now unnecessary since 2005. In consequence, deals were not being concluded, Court cases were not proceeding, children were remaining un-adopted and all manner of frustration and difficulty was the result.
Recently the Indian High Commission office decided to relent and to agree to counter-stamp Apostilled documents. It required any applicant for such a procedure first to sign an indemnity acknowledging that the procedure was of no legal consequence. This is a ridiculous state of affairs but it does seem to have had the effect of enabling stalled legal business to be resumed
But now see the notes of a February 2009 meeting of the Special Commission (SC) of the Hague conference on the working of Apostille at
http://www.hcch.net/upload/wop/genaff_pd04e2009.pdf
And, in particular, paragraph 69
“The SC recalls that Article 9 does not permit legalisation by diplomatic or consular agents when the Apostille Convention applies. The SC reminds States Parties of their obligation to take the necessary steps to ensure compliance with the provisions of this Article.”
So it would appear that the High Commission is going to have to – for the second time – refuse any request to facilitate Anglo-Indian commerce by adding its stamp to Apostilled papers. I therefore confidently predict that all the consequent problems are about to reappear.
A bit of Latin
To finish off my first blog as you would expect of a Notary – a little Latin.
Die dulci fruere!