Power of Attorney Notarization

Power of Attorney Formal Requirements.

We know that a power of attorney is a document that allows a person to delegate someone to perform an activity in lieu of them and on their behalf.

A Power of attorney is widely used among Australian citizens who need to manage their affairs in Italy, such as a sale, a gift, or the distribution of an inheritance.

Let's look at the main formal requirements provided by Italian law along with the basic rules that an Australian notary must comply with.

Let's start by saying that an Italian citizen can contact their local consulate, which will provide assistance without addressing this issue to a local Notary Public. Therefore, the following outline would primarily concern those Australian citizens who need to manage their affairs in Italy.

As obvious as it may seem, the power of attorney should be drafted in the language of the country where it is intended to be used, i.e., Italian. If drafted in English, it must be translated into Italian.

It should be noted that drafting the power of attorney in English with simultaneous translation into Italian is highly not recommended, as it could lead to interpretation errors that could jeopardize the finalisation of the transaction in Italy.

In the vast majority of cases, the text of the power of attorney is prepared in Italy by the professional in charge of the transaction for which the power of attorney is requested.

The Australian notary will therefore only be required to certify the signature at the bottom of the power of attorney and subsequently legalize the document with Apostille.

Since this is a private document prepared by another professional, the notary would not be strictly required both to know the text of the power of attorney and to explain it to the person signing the document.

Obviously, this would not preclude the Australian notary from providing a translation service and explain the content of the document to their client.

It is also possible for the client to ask the Australian notary to amend the document.

In this case, while the notary would be allowed do so, there may be the risk that either the changes would not be accepted by the agent receiving the power of attorney, or by the professional or authority involved in the transaction to be concluded.

Another important aspect is the form of the notarial certification.

For the power of attorney to be accepted in Italy, the notary shall certify that the party appeared in person before him/her, that he/she was properly identified, and that the signature was placed in his/her presence.

In order to be enforced in Italy, the document must be apostilled by the local Department of Foreign Affairs and Trade.

The above is the case where the power of attorney can be drafted as a private document and the signature certified by the notary.

A different case, however, is when the Italian law requires the power of attorney to be issued in the form of a public deed in the presence of two witnesses. This would usually occur when the power of attorney is requested to make a gift in Italy, but it can also occur whenever the notary or the authority deems it appropriate.

In this case, there are two options:

1. The first is for the text of the power of attorney to be prepared by the professional in Italy. In this case, the Australian notary must translate the document, understand its full meaning, make it as if it were his own text, and explain it to his client in the presence of two witnesses who must sign the deed. In fact, it is as if the notary had drafted the deed himself/herself.

2. The second option is for the Australian notary, if fluent in Italian and familiar with the general principles of Italian law, to draw the deed on his/her own initiative, which he/she must then explain to his/her client.

It must be noted that the first option is preferable to the second because:

1. it would rule out any chance of error on account of the Australian notary, and

2. it would exempt the notary from any liability that would lay on the professional who physically drafted the deed in Italy and provided the instructions to the Australian notary.

The power of attorney by way of public deed is subject to the same notarial certification rules outlined above and must be legalized with an Apostille.