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Powers
of attorney
What
is a power of attorney?
Known
in French as a ‘procuration’, a power of attorney gives one person
authority to act on behalf of another.
The person who acts on behalf of the other is known as ‘an
attorney’. In the context of
the purchase of real estate property in
France
, powers of
attorney are principally used to enable the deed of completion of the
purchase (‘acte authentique’) to be signed on behalf of any party who
is not able to attend the actual signing with the notaire.
Sometimes, they are also used for the signing of the first contract
(‘compromis’).
Who
draws up the power of attorney?
The
power of attorney will be drawn up by the notaire and sent to the party
who has requested it.
What
does the power of attorney contain?
It
will specify the authority given to the person nominated as the attorney
and the various acts that the attorney will be responsible for
accomplishing. If the power of
attorney is for a purchaser, it will thus detail that the deed can be
signed on his or her behalf, the various formalities that should be
complied with, the checks that should be made e.t.c.
In addition, it will identify the person giving the power, the
attorney, the property object of the purchase and other necessary
information to enable the attorney to fulfil the task appointed to him or
her.
Who
acts as the attorney?
In
this context, it is usual for a notaire’s clerk to be nominated as the
attorney (it cannot be the notaire responsible for drawing up and
witnessing the deed of completion). Sometimes,
if one of the purchasers can be present and the other cannot, the
purchaser that is present will be granted attorney (this is common between
husband and wife for example) but it may be preferable to nominate a
professional such as the notaire’s clerk in case of any question of the
attorney being legally liable under the original power.
Occasionally, the estate agent or one of his or her employees or
commercial agents is appointed. Although
this is a possibility, it may be felt desirable to nominate the
notaire’s clerk to add an extra degree of objectivity and independence
from the actual transaction.
How
is the power of attorney signed?
When
the person giving attorney is located outside of
France
, his or her signature should normally be witnessed by
a notary public or similar professional with specific responsibility for
witnessing documents for use abroad or by a member of the French
consulate. If the person is
located in
France
the witnessing of the signature is not usually
required but may be desirable. An
employee at the local town hall (‘mairie’) would be in a position to
witness a power of attorney in such a case.
Is
it still possible to complete by way of power of attorney when the
purchaser is buying using a mortgage?
If
the mortgage is secured against the property in
France
then it is still possible to sign the deed of
completion by means of a power of attorney.
However, the power must specify that authorisation is given in
relation to the security to be taken by the lending organisation against
the property. This imposes
additional obligations for the signing of the power.
It could be witnessed in a special ‘authentic’ form by a
notaire or a member of the French Consulate.
Alternatively, it could be witnessed by a notary public or similar
official and then, for a purchaser from the
UK
, for example, sent to the Foreign and Commonwealth
Office who will annex an official stamp (‘apostille’) to the power
following verification of the purchaser’s identity.
07/04/2003
- Issue of the week
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