Powers of Attorney and Coronavirus
Occasionally it is possible to prepare articles on questions of French law and tax that directly relate to current affairs. We can take as examples the recent changes in European inheritance law by virtue of the EU Succession Regulation that came into force in 2015, or the implications of Brexit, the consequences of which are still ongoing.
Rarely, though, is the current climate so febrile that there is no way of knowing whether this article will be entirely superseded and irrelevant or still in the minds of readers by the time it is published. At the time of writing – in mid-March 2020 – clients concerned that they may be unable to attend completion meetings at the offices of their notaire are regularly asking whether they need to travel, or whether this can be avoided. The worldwide pandemic of COVID-19 is increasing at an alarming rate; who knows how far reaching it will become, or how long it will last, and how strict any travel bans will be?
For those who have not yet bought their house in France, it is pertinent to appreciate that there is still a completion meeting that will need to take place at the office of the notaire. All parties are in principle required to attend the meeting, to sign the deeds, or to designate someone to sign on their behalf.
Generally, we advise clients that it is in their interest to attend the completion meeting if at all possible, in particular when they are buying – it will usually at least allow them to collect the keys, and possibly have a last discussion with their seller about matters such as the location of the meters and so on. It will also offer them the opportunity to visit the property just before completion, to ensure that everything is still in place.
Yet sometimes it is not possible for the parties to attend the meeting. In such cases, it is usually possible to be represented by virtue of a power of attorney that will have been completed in advance. The procedure for completing a power of attorney can vary, depending upon a number of factors that we shall consider below.
A power of attorney works by allowing someone to represent the party. In general, that designated representative could be a friend or relative who is able to attend the notaire’s office, but invariably it will be one of the notaire’s staff. At the current time, the ban on people visiting the notaire’s office result in the representative having to be one of the notaire’s staff. It cannot be the notaire in person; this means that in the event that France imposes a complete lockdown such that none of the staff can attend the office – which does appear to be a possible development – then it would no longer be possible to complete a deed at all.
The power of attorney will be prepared specifically for the anticipated transaction. It will reiterate the full details of the party granting the power, and would have to name the person to whom authority to act is granted; it is general practice, though, to extend authority to any member of the notaire’s staff.
To complete a power of attorney, the party would usually need to have their signature witnessed by a suitable authority; in France this could be a notaire; in the UK it could be a Notary Public, although some solicitors may be able to do this. Most solicitors would be reluctant to witness a signature to a document in another language. Naturally if you have instructed a firm of solicitors with a specialism in French law it is reasonable to expect that your solicitors will be a fluent French speaker, so they should be able to assist.
There are strict requirements as to how the power of attorney should be signed, in particular in relation to wording to be added in handwriting before the signature, and how it is witnessed. Failure to observe these requirements may potentially mean that the document would not be a valid power of attorney, and so could not be used to allow for your representation at the notaire’s office for completion of the main transaction.
Where a party is signing before a local Notary Public, it is prudent to understand what his or her requirements are as to completion. A Notary Public is a specialist lawyer duly authorised, among other matters, in completing documents for use overseas. It is generally the case that they would not have any other dealing with the specific case. They would need to be able to ensure that the party coming to sign the document fully understands its content, as well as certifying the identity of the party. So if the power of attorney is in a foreign language, they may insist on a full translation by a certified translator in advance. The French power of attorney is likely to be substantial, and so the costs of translation of a power of attorney can be notable.
It is often necessary to submit the power of attorney to a legalisation process known as the ‘Apostille’ stamp. This stamp is issued by the Foreign & Commonwealth Office (‘FCO’), and works as a validation of the document so that it can be used overseas. In practice, it is a validation of the signature of the person who witnessed your signature to the power of attorney. This is a major reason why only a Notary Public or suitably experienced solicitor should be expected to witness your signature: they will already be recognised by the FCO.
Once a power of attorney has been signed and witnessed, and submitted to the FCO for legalisation with the Apostille stamp, the original paper version can be returned to the notaire to allow for the transaction to complete. Scanned versions are not acceptable: there is still some time before we will be able to work in a truly virtual, paperless legal environment… This is, therefore, a rather lengthy process, and so should be organised well in advance of the due date for completion of the specific transaction.
That is how a power of attorney can be employed in normal times, to avoid the need to visit the notaire’s office for completion. These, though, are anything but normal times.
Currently, notaire’s offices are insisting that all transactions are being completed by power of attorney, rather than allowing for the parties to a transaction to come to their offices. As mentioned above, each party is to be represented by one of the notaire’s staff; if there is any extension in movement limitations in France (which may already have happened by the time you come to read this…) then even signature by power of attorney may become impossible.
Until then, notaires are looking at ways to simplify the signature and legalisation process, which might help some matters complete. So if you are now in a position where you might soon be expecting to complete a purchase, a sale, or some other transaction in France, it may be wise to look into the option of signing by power of attorney.
For individual advice, please contact our specialist French Legal Services team through this website or by calling 0330 404 0755.
This information is correct at 3.30pm on 24 March 2020.
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