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The Impact of International Laws on Power of Attorneys

A Guide for U.S. Residents

Last Updated: September 12, 2024

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An international Power of Attorney can empower people to manage their affairs across borders.
Different legal systems and international laws can greatly impact the validity of a Power of Attorney.
Select a quality agent and communicate their powers clearly to avoid misunderstandings.

The basics of a Power of Attorney
How international laws affect a Power of Attorney
Specific considerations for U.S. residents
Selecting the right attorney-in-fact for international matters
How to make an international power of attorney

The basics of a Power of Attorney

First, it’s crucial to understand the purpose of a POA, and the critical role an agent or attorney-in-fact plays so you can make an informed decision about who to appoint and what powers to grant.

In essence, a Power of Attorney allows you (i.e., the principal) to designate someone you trust (i.e., your agent or attorney-in-fact) to handle your affairs when you cannot do so.

The flexibility and convenience of having an attorney-in-fact is a practical solution for managing personal, financial, and legal matters, especially during prolonged periods of absence or incapacity.

An attorney-in-fact’s responsibilities are limited to what’s granted in the Power of Attorney document. These responsibilities and powers include:

The ability to make decisions on the principal’s behalf
A fiduciary duty to act in the principal’s best interests
Specific powers related to business, real estate, finances, legal matters, and more

Check out LawDepot’s Power of Attorney template to learn more

about the different types of POAs you can create and the powers they grant.

U.S. citizens often find themselves needing an international Power of Attorney in various circumstances, including:

When owning property in a foreign country , whether a vacation home or investment property, a POA helps to manage rental income, maintenance, and potential sales.
For those involved in international business , a POA can be crucial for handling contracts, opening bank accounts, and managing day-to-day operations.
While less common, a Medical POA is beneficial if you anticipate extended stays abroad and require medical care.
An international POA can be a vital component of comprehensive estate planning for those with assets in multiple countries.

How international laws affect a Power of Attorney

While a POA is a common tool for estate planning and business needs, international lawscan greatly impact its effectiveness when you or your agent are outside the United States.

Jurisdictional challenges

The main hurdle is the varying legal frameworks between nations. Civil law countries (like France, Germany, and Mexico) tend to have more rigid requirements for recognizing foreign POAs. Common law countries (like the U.S., Canada, and Australia) generally have more flexible approaches but still require adherence to certain standards.

For example, here are some jurisdictional challenges of presenting a U.S. Power of Attorney in Mexico:

A Mexican consulate must typically authenticate a foreign POA before it’s recognized in Mexico.
The person appointed as the agent must often be a Mexican resident or have a specific legal status in Mexico.
A certified Spanish translation of the POA is usually required.
Mexico also has specific POA types for different actions (e.g., property management, and healthcare), so a general POA may not suffice.

On the other hand, common law countries like Canada or Australia generally recognize a United States POA with ease. However, there are variations between each province and territory within these countries. While the general principles are similar, the specific requirements for a legal POA can vary.

It’s essential to research the U.S. and your target country to ensure your Power of Attorney is properly executed, recognized, and can function as intended.

Creating multiple POAs for use in different countries

When emergencies strike, you don’t want foreign laws restricting someone’s ability to act on your behalf.

To ensure your POA is valid abroad, take the following steps:

Research local laws: Requirements for executing a POA will vary depending on where you or your agent will be.
Create multiple POAs: You might need separate POAs for different countries or specific purposes. LawDepot offers Powers of Attorney in countries worldwide; each template is built by our legal team to be valid in the state or country it’s created for.
Define legal authority: Clearly define your agent's authority, especially if it involves property, health, or financial matters. If you’re creating multiple POAs, give the agent(s) under each POA unique powers. Having two conflicting POAs with agents with the same powers could cause issues.
Obtain an apostille or legalization: Some countries require an apostille (for Hague Convention member countries) or legalization (for non-member countries) to validate a foreign document. Typically, the POA must be notarized before the signer can get an apostille or legalization.

Understanding apostilles

An apostille is a standardized international certificate that authenticates the origin of a public document. It is a simple document issued by the state for a fee (which varies depending on your location).

Simply put, an apostille verifies that the signature and seal of the notary/official on the document are genuine and that the person who signed it had the authority to do so.

For an apostille to be valid, both countries concerned need to be signatories to the 1961 Hague Convention. You'll need an apostille if the country where your POA will be used is a signatory to this convention, which simplifies the process of verifying documents for use abroad.

The Apostille Process

Your POA must be notarized first. This verifies the signer's identity and the authenticity of the document.

You'll then apply for an apostille from the appropriate authority in your home country. In the United States, this is usually a Secretary of State or a similar government agency. For example, the apostilling entity in California is the Secretary of State.

If the POA is valid, an apostille will be attached to it, certifying its authenticity.

While an apostille is generally sufficient for Hague Convention member countries, some countries might have additional requirements.

For non-member countries, a more complex process called legalization, which involves multiple government agencies, is required. For instance, in Jamaica, you must contact the Department of Consular Affairs for document authentication and legalization.

Note: The apostille process can take several weeks, so plan accordingly!

Specific considerations for U.S. residents

To mitigate risks and ensure the effectiveness of your international POA, consult with attorneys in both the U.S. and the foreign country to understand the specific legal requirements.

Mark Hirsch, a personal injury attorney and partner in the firm of Templer and Hirsch, says problems often arise when an attorney-in-fact must deal with different law systems. He spoke about a client whose POA was signed in the U.S. but turned down in a European country because their laws differed.

“We overcame this by getting more paperwork to meet the local standards,” said Hirsch. “In these situations, you’re more likely to succeed if you plan and choose an attorney-in-fact who you can trust and knows the foreign laws that apply.”

It’s also crucial to clearly outline your agent's authority and limitations to avoid misunderstandings. Consider appointing a local agent and be aware of any potential tax consequences for your business in a foreign country.

“Keeping [your POA] updated as laws change and ensuring that the attorney-in-fact knows their tasks in each jurisdiction are all best practices,” said Hirsch. “These steps can make a big difference in how well a foreign POA works to protect your interests, no matter where they are.”

Tiffany Bayliss, founder and Chief Learning Officer at Lawyerly, said international POAs are very common in situations of executing Wills and Trusts when a family is unable to travel. Bayliss said she saw these cases often during the pandemic, and a large problem that would arise was when an agent of a POA didn’t speak the language fluently.

“It can cause issues as great as an entire Will being administered incorrectly because of a misunderstanding of the nuanced intentions listed out in it and discussed by the family,” said Bayliss.

She also spoke of cultural differences adding to the errors being made because interpretations of how legal action should be taken can be highly dependent on the cultural norms of the selected representative. For example, some cultures may have distant ties to family, whereas others have strong family and community ties.

In the end, Bayliss said successful international POAs are usually when the appointed person:

Understands the cultural context and values of the person they’re representing
Is fluent in the language or has a certified translator to help

Selecting the right attorney-in-fact for international matters

One of the first questions many people have is whether they can or should appoint an attorney-in-fact who resides in a different jurisdiction.

The answer is generally: yes, you can appoint someone who lives abroad! However, there are both advantages and disadvantages to this approach.

Advantages	Disadvantages
✅ A local attorney-in-fact is familiar with laws, culture, and business practices, which can be invaluable.	❌Cultural differences and language barriers could lead to misinterpretations.
✅ If there's a significant time difference, having an agent in the proper time zone can facilitate communication and decision-making.	❌ Physical distance can hinder effective communication and problem-solving.
✅ An international POA provides reassurance that your affairs are being handled competently and efficiently, even when you are far away.	❌ In case of emergencies, there may be delays in responding due to geographical distance.

Regardless of where your attorney-in-fact resides, several qualities are essential:

Trustworthiness: The individual must be completely trustworthy and have your best interests at heart.
Financial responsibility: Strong financial management skills are crucial, especially if the POA involves handling assets.
Legal knowledge: Understanding both US and foreign laws related to the POA is beneficial.
Language proficiency: If the foreign jurisdiction has a different primary language, language proficiency is essential.
Availability and responsiveness: The agent should be readily available to address matters promptly.

It's also important to be aware of potential conflicts of interest. For example, if the agent stands to benefit personally from decisions made under the POA, this could compromise their objectivity. To minimize these risks, clearly outline the agent's responsibilities and limitations in the POA.

Part of the agent’s fiduciary duty is to act in the best interests of the principal and avoid conflicts of interest, so agents shouldn’t be making decisions for their personal benefit. If they do not adhere to these duties, then legal actions can be brought against them (e.g., by the principal’s family). Agents usually have to keep records of all transactions as well, which may be useful if you suspect foul play.

Other legal and practical steps to take include establishing clear communication channels and expectations and designating a successor agent in case the primary agent becomes unable to serve.