The Foreign Power of Attorney

1. Introduction
2. Power of attorney
3. The form of the power of attorney in Italy
4. The foreign power of attorney and its form
5. Identification of the parties
6. The signature
7. Legalisation
8. The Apostille
9. The Apostille
10. Translation
11. Exclusions
12. Strategies

Introduction

How often does it happen that a person intending to conclude a deed in Italy cannot or does not wish to be present at the deed itself in the flash?

This can happen especially when the party is a foreign citizen or in any case resides abroad; but not only, this hypothesis can also occur for those who are present on Italian territory, indeed.

In this case, the instrument that enables the deed to be concluded anyway is the power of attorney.

But what happens if you cannot go to the office of the public official in Italy?

One solution is the foreign power of attorney, which allows those who have to take part in acts concluded in Italy to grant the person chosen as representative without having to travel to Italy to sign in front of the competent public official.

Power of attorney

Power of attorney is the legal act whereby the principal grants the representative authority to perform legal acts in its name and on its behalf and whereby the effects of the legal acts performed are directly imputed to the principal

The form of the power of attorney in Italy

With regard to the power of attorney and its validity, the principle of parallelism of forms applies in our legal system.

In this sense, it is the Civil Code, inArticle 1392 , that requires that the power of attorney be in the same form as the contract or the legal act to be concluded.

The principle is fully operative for powers of attorney granted in Italy, but is somewhat mitigated for foreign powers of attorney.

The foreign power of attorney and its form

For foreign powers of attorney, in fact, the reference is also toArt. 60 of Law 218/1995 , according to which the document by which powers of representation are conferred is considered valid if it is considered to be so

– by the law governing it; or

– by the law of the state in which it is made.

In other words, according to the principle of equivalence, in order for the power of attorney to operate in our legal system, there must beequivalence between the act originating abroad and the Italian act.

Precisely for this reason, it is first necessary to verify that theforeign authority issuing the power of attorney can perform notarial or similar functions; on this point, it is worth bearing in mind that in some countries there is a similar function of ‘public notary’.

Identification of the parties

A brief remark must be made with regard to theidentification of the parties. It may happen that not all the identifying elements required by Italian law are present in the foreign power of attorney.

In this regard, the presence of the indications required by the foreign law is deemed sufficient with the specification that these must be suitable to guarantee certainty as to the identification of the parties.

The signature

It is very important that the signature of the represented person be affixed in the presence of the authority issuing the power of attorney.

More and more foreign legal systems also allow the signature to be affixed remotely.

Legalisation

The process of legalisation aims to ensure that the document produced abroad can be used in the territory of a different state, and is divided into two steps.

The first is when, after signing the deed, the foreign notary notarises its signature to the competent authority for legalisation.

The purpose of this legalisation is to certify that the signature affixed to the deed by the notary is genuine and authentic.

The second step is to take the legalised document to the Italian diplomatic or consular representation present in the State where the document was finalised. The official will then legalise the document again, certifying that the legalisation affixed by the competent foreign authority is true and authentic.

Then the document can then be sent to Italy.

The Apostille

The apostille is intended to replace and simplify the legalisation mechanism, and can be used when the country from which the document originates or for which the document is intended has acceded to the Hague Convention of 5 October 1961.

In this case, following the completion of the deed abroad, the notary affixes the apostille on the document, and the deed can then be sent to Italy and used there, without the need for double legalisation.

Of course, it is always necessary to check that the country from which the document originates has acceded to the aforementioned convention.

The Apostille

The apostille is intended to replace and simplify the legalisation mechanism, and can be used when the country from which the document originates or for which the document is intended has acceded to the Hague Convention of 5 October 1961.

In this case, following the completion of the deed abroad, the notary affixes the apostille on the document, and the deed can then be sent to Italy and used there, without the need for double legalisation.

Of course, it is always necessary to check that the country from which the document originates has acceded to the aforementioned convention.

Translation

Once the power of attorney has arrived in Italy, it must be translated into Italian if drafted in a different language.

The translation of the power of attorney must then be sworn.

For the translation and asseveration, one can turn to the notary if he knows the English language and intends to translate the deed, to a trusted person or to a translator who is also registered on the Court’s CTU roll; the latter, thanks to specific skills, guarantees an adequate level of translation.

Exclusions

From what has been said, documents and acts, including the power of attorney, that are formed and issued by Italian diplomatic or consular representations located abroad or by delegated officials must be excluded. These documents are not considered ‘foreign’ or ‘foreign’ and may be used directly in Italy without the need for further formalities.

Strategies

The procedure described above may seem complex, and in a way it is.

A number of basic steps and formalities must be complied with in order for the power of attorney to be usable, or ‘spendable’ (as it is also called in the jargon) in Italy.

In this case, the assistance of a lawyer who has experience in the international sphere may be useful.

The lawyer can make contact with the relevant notaries and put them in touch with each other, as well as assess the adequacy of the content and ensure that the procedural steps are followed.

Moreover, in the event that the lawyer has the specific language skills (perhaps because he or she is registered in the notary register mentioned above), he or she can also proceed with the translation of the document and its asseveration.