Authorising someone to act on your behalf in India
You live in Australia, but you want someone to look after your property, business, or other legal or financial dealings in India? You can achieve this by appointing an attorney under a power of attorney. Usually, a power of attorney signed in Australia must be notarised before it can be used in India.
You can use a General Power of Attorney if you want your attorney to handle everything for you. However, if you want to limit your attorney’s power (ie, to a specific issue or transaction), then a Special Power of Attorney will be more appropriate.
Does my power of attorney need to be notarised?
If you live in Australia and you’re signing a power of attorney for India, then it’s likely that your power of attorney must be notarised. This means you must sign it in front of a notary public who’ll confirm your identity, witness your signature and notarise your power of attorney. VFS (on behalf of the Indian Consulate) may offer attestation services, however, you would have to check whether this applies to your power of attorney and/or whether you still require notary public services to satisfy the VFS checklist for document attestation.
You can ask your lawyer in India whether you can sign your power of attorney in front of a justice of the peace or some other authorised witness, but it’s unlikely since a justice of the peace or other authorised witnesses wouldn’t normally be recognised in India. Also, your power of attorney will probably need to be stamped with an apostille (which requires notarisation).
What does notarising my power of attorney involve?
Notarising your power of attorney will generally require you (and anyone else who may be signing the power of attorney with you) to sign in front of the notary public. The notary public will verify your identity according to your passport (or other photo identity documents) and witness you sign your power of attorney. The notary public can then notarise your power of attorney by stamping, signing, and sealing it to confirm that they identified you and witnessed your signature.
When notarising documents like the power of attorney, our stamps include a statement in which we confirm the identity of the person who signed the document, confirm that they signed it in our presence, and verify that we identified them according to their specific identification document. Our accompanying signature and notary seal are the fundamental parts of notarisation.
Who can prepare my power of attorney for India?
Since your power of attorney is to be used in India, it should be prepared by someone who is familiar with the laws, procedures, and documents used in India. Generally, we recommend that this should be a qualified lawyer in India.
Can I use an Australian power of attorney in India?
Despite what you may have heard from other people, you shouldn’t use a power of attorney that’s been prepared for use in Australia as your power of attorney in India.
For example, you shouldn’t use the template for a power of attorney that’s been prepared according to the Powers of Attorney Act 2003 (NSW). Usually, this power of attorney is only valid in New South Wales and Australia. Australia and India are different countries and so the laws, procedures, and documents are different. Accordingly, the power of attorney that’s been prepared for Australia and used in Australia is different from the power of attorney that’s been prepared for India and used in India.
Whatever power of attorney you prepare in Australia might only be valid in Australia and may not be valid in India.
Can I write my own power of attorney for India?
You can write your own power of attorney for India, but we don’t recommend it.
You should also be careful about following ‘advice’ you read on online forums, chat groups or downloading just any kind of template from the internet without checking that it’s correct, reliable, and relevant. While the internet may be a vast source of ‘information’, it’s not always the best information and it may not be relevant to you or your situation.
The power of attorney is an important legal document and relying on wrong information or using the wrong template could have unexpected consequences.
If your power of attorney hasn’t been prepared properly it might be rejected or create more complications, and aside from the wasted cost of doing it all over again, there’s also the irreplaceable cost of time and the delay.
Even relying solely on this article can be dangerous. We write this article from the perspective of observing what clients bring to us for notarisation, not from preparing the power of attorney for India or dealing with the power of attorney once it arrives in India. Also, these observations are only current as of the date we write this article and laws and practices can change over time. This is why we’re constantly reminding you throughout this article that all aspects of preparing, signing and finalising your power of attorney in India should ALWAYS be confirmed with your lawyer in India.
Should I use a General Power of Attorney or a Special Power of Attorney?
Whether a general power of attorney or a special power of attorney is more appropriate for your situation depends on what you’re doing and what you want your attorney to do for you. For example, if you’re appointing a family member to handle all of your matters on your behalf, then maybe a general power of attorney would be the appropriate document. However, if you’re appointing your lawyer to look after a specific transaction on your behalf then perhaps you would appoint them as your attorney under a special power of attorney.
What colour pen should I use when I sign my power of attorney?
Interestingly, we’ve had several clients over the years who have been directed by their lawyers to use a specific colour pen when signing their power of attorney. Generally, this has been either black ink or blue ink.
If you’re not sure whether you must use a specific colour pen when signing your power of attorney, you should ask your lawyer in India. It may also be worth determining whether their instructions (if any) is based on a legal requirement or something else.
Does my power of attorney need to be printed on stamped paper?
Stamped paper (or bonded paper) is essentially ‘pre-paid duty’ for legal and commercial documents used in India. You must check with your lawyer in India whether your power of attorney should be printed on stamped paper. If so, then your lawyer must arrange this for you because stamped paper is not available in Australia (ie, it’s an Indian document relating to Indian duty and has no relevance or application in Australia).
If you print your power of attorney on plain A4 paper, your lawyer will need to arrange for payment of the duty and stamping once your power of attorney arrives in India.
Do I need to have other witnesses sign my power of attorney?
Many of the standard templates for the power of attorney used in India has space for 1-2 witnesses. Generally, signing in front of witnesses is required if you were signing your power of attorney in India (without a notary public). You should check with your lawyer in India whether these witnesses are still required when you are signing your power of attorney in Australia and in front of the notary public.
If you must sign your power of attorney in front of other witnesses, then you should also ask your lawyer whether those witnesses also must have their signatures notarised. If so, then your witnesses must accompany you when you visit the notary public so that you and your witnesses can all have your signatures witnessed and notarised.
Do I need to put my photograph in my power of attorney?
Many of the standard templates for the power of attorney used in India has a space for you to attach your photograph. Sometimes you’ll also need to attach a photograph of your attorney as well. Check with your lawyer in India whether you must attach photographs as this should be done before you sign and have your power of attorney notarised. If you attach your photograph to your power of attorney, we’ll usually put our seal over part of your photograph when we notarise your power of attorney.
If your power of attorney is accompanied by another document titled “Photographs and Fingerprints as per Section 32A of Registration Act 1908” then it’s likely that you’ll need to attach your photograph to that document instead. Interestingly, although that document states that to requires a ‘black and white’ photograph, we’ve had clients whose documents have been rejected for not attaching a colour photograph despite the written instructions.
Do I need to put a thumbprint when I sign my power of attorney?
Many of the standard templates for the power of attorney used in India has a space for you to put your thumbprint (generally your left-hand thumb) and sometimes this appears as a separate document titled “Photographs and Fingerprints as per Section 32A of Registration Act 1908”.
Usually, if someone is unable to sign, they would use a thumbprint instead of a signature. For documents used in India, you will be asked to sign and put your thumbprint as well. If you are not sure whether you should also put your thumbprint on the power of attorney, you should ask your lawyer in India for guidance.
Some lawyers may even provide specific instructions about the colour of the ink used for the thumbprint so it’s always best to check before you arrange to have your power of attorney notarised. The majority of thumbprints that we’ve taken have been in black ink, but every now and then some clients have stated that they’ve been told to use blue ink.
Why do I need an apostille for my power of attorney?
As Australia and India are both members of the Apostille Convention, this means that documents from Australia but used in India should be stamped with an apostille in order for those documents to be accepted in India. This is the technical answer, but in practice many of our clients only have their power of attorney notarised and that’s it (no other attestation or stamps). Again, this is something you’ll need to check with your lawyer in India as your situation may be different.
Depending on who you’re dealing with in India, you may be directed to have your document attested by VFS (on behalf of the Indian Consulate). If so, then you should check the VFS website for more information about their document attestation services.
There are different requirements for Indian citizens and citizens of other countries (ie, Australia) when submitting documents to VFS for document attestation. For example, if you’re an Australian citizen you must have your power of attorney notarised and stamped with an apostille and if you live in New South Wales, you must also provide a notarised copy of your passport.
In Australia, the Department of Foreign Affairs and Trade (DFAT) is the ‘designated competent authority’ for issuing the apostille. DFAT can stamp an apostille on original public documents (ie, other Australian government documents) or on notarised private documents (ie, non-government documents like the power of attorney). This means your power of attorney for India must be notarised before it can be stamped with an apostille.
Does my power of attorney need to be attested by VFS?
According to the Apostille Convention, once your power of attorney has been notarised and stamped with an apostille from DFAT, it does not require further authentication or legalisation through VFS in order to be recognised in India. Both Australia and India are members of the Apostille Convention and accordingly, documents that have been stamped with an apostille in either country will be recognised in the other.
Despite this, many lawyers in India still ask their clients in Australia to have their power of attorney attested by VFS. VFS is also aware that this is a common practice and if your power of attorney has already been stamped with an apostille, VFS will ask you to sign a disclaimer/acknowledgment that you’re aware that an apostille is not required (according to the Apostille Convention) but that you’re still requesting VFS to provide document attestation services.
Document attestation by VFS follows a specific checklist that you can download from their website. The checklist specifies if and who must have their documents stamped with an apostille and any other requirements. It’s important that if you need to have your document attested by VFS that you follow these checklists.
How do I revoke or cancel my Indian power of attorney?
It’s very important that if you want to revoke or cancel your power of attorney in India that you speak to your lawyer in India to prepare the necessary paperwork. Generally, the revocation would also need to be signed and notarised. There may also be specific service requirements on your attorney which your lawyer in India should be able to handle or arrange on your behalf.
Do you have any questions regarding this article?
Whether you’re notarising a document for the first time or the hundreth time, the requirements, processes, and terms can be confusing and daunting – or just a pain and a hassle (especially if you need an apostille, or to authenticate or legalise as well). Don’t worry! We’re here to simplify it, explain it, and help you with what you need to achieve it.
Contact us or visit our Frequently Asked Questions for more information about our notary public services. We’ve also created a flowchart to help explain notarisation, apostille, authentication and legalisation.
So, what’s next?
Why choose Phang Legal for your notary public services?
We’re a leading provider of notary public services in Sydney known for our experience and expertise in notarising documents for other countries, our low-cost fixed fees and service offering, and our availability to help on short notice. With our offices conveniently located in Parramatta, the geographic centre of the Sydney metropolitan area, we help clients from across Sydney and beyond with personal, professional and timely notary public services.
This website is maintained by Phang Legal, a boutique law firm in Parramatta and a leading provider of quality notary public services to satisfied clients across Sydney.
Ern Phang is a director of Phang Legal and a notary public (since 2005). Ern regularly writes about his experiences as a notary public and the issues faced by his clients in sending documents to other countries.