One of the very few hassles we’ve had to deal with is that Lisa owned the condo her mother lived in back in California. We knew it was very likely that it would need to be sold after we left the country and did our research about how that could best be handled. In the end, we decided on leaving a Power of Attorney with her sister to specifically handle this transaction.
Of course, it turned out to not be that simple.
A power of attorney (PoA) is a document that gives a specific person the authority to act in your name. It can be general, encompassing all financial and legal matters, or specific to a single area. Each state has a general form, easily found online. That form lays out the scope being granted and the timeframe or circumstances. Granting someone with your PoA doesn’t give them the authority to act instead of you unless you cannot — usually for medical or physical reasons.
This is a great instrument for those of us outside the country if we have issues that might arise in our absence. Such as selling a piece of property.
The California-specific form even has a specific version for Real Estate, and requires either two (2) witnesses or a notary acknowledgment. The witnesses can’t benefit directly from the PoA being wielded, but in the lockdown were easier to find than a notary. So we went with that. (This is what’s known as foreshadowing.) I got a copy, my sister kept the original and off we went to Portugal.
Eighteen months later, we’re selling the property. Of the (seemingly) hundreds of documents that needed my signature, only two couldn’t be handled electronically. Perhaps ironically, they both came from the organization governing the development my the property was in. “No worries,” I said with a flourish, “I left a Power of Attorney with my sister. She can sign on my behalf.” Send us a copy, the Title company rep said, we’ll make sure it will be all right.”
Turns out that since the PoA wasn’t notarized, it wasn’t acceptable. It wasn’t legal for real estate transactions . . .. DESPITE clearly stating that either two (2) witnesses or a notary acknowledgment were required. So sorry, but no amount of frustration or pleading will make it different.
So, all of the documents required to transfer the property were handled through Docusign, but two documents specific to the whims of a private organization needed to be notarized.
In Portugal (and my impression is that this is true for much of the EU) the role of a notary is much greater than in the United States. There, notaries are legal witnesses to a signature being affixed to a document. They must ensure that the signing party is who they say they are (by verifying identity, often a driver’s license) and they know what the document is that they are signing. Here, notaries ensure a contract and its implications are understood properly by all parties, that the contents of the contract are valid and lawful, that any agreed monies change hands accordingly and any taxes related to the contract are collected. Notaries are highly trained lawyers who have qualified to draft and legalize a range of private contracts and transcriptions within the Portuguese law system. Their status equates to that of a public official and they can insist on translators, or translated copies, being present when non speaking Portuguese clients are signing.
Argh! I said, and tried to explain that getting a notary would involve document translation and lawyers. Sorry, Title Agent said, my hands are tied. Oh, and I just found out that the documents didn’t just need to be notarized, but apostilled.
/sound of record scratch/
Apostille? oh no!
If you are interested in emigrating, you’ll come across the need for an apostille in a variety of places (such as in the process of preparing to exchange your driver’s license). At its most basic, an apostille is a document that authenticates the signature of a public official on a document for use in another country. The apostille validates the authenticity of the signature of the public official who signed the document, the capacity in which that public official acted, and if appropriate, the identity of the seal or stamp which the document bears, e.g. a notary public seal. In other words, an apostille says, “the State acknowledges the right of the person validating the signature as legally empowered to do so.”
Well. That was an additional wrinkle that added a whole level of hassle, because where we live the nearest government body that will provide and apostille is about 25 mins away . . . and only had available appointments a week later. No big deal in most circumstances, but closing was supposed to happen in three business days and even if I walked right out of the office and went to an international mailer, the documents wouldn’t arrive until a week after that date.
Time to regroup and reassess options.
The best option for us, because of the time factor, was to go to the US Embassy in Lisbon. The Embassy provides notary services for US citizens, requiring only a passport (or other US government issued photo ID), assurance that you understand the document you are signing, and are not under duress to do so. Oh, and $50 per document. We secured a 9am appointment on Tuesday (the only day they do notarial services) and set about figuring out how to manage the logistics. While a train ride was most efficient in terms of time, it was a PITA because no train would get Lisa there in time for her appointment, necessitating an overnight. So we rented a car late Monday and got us super early to get on the road by 9am.
At the Embassy, things were super easy. Note that you cannot take anything electronic into the Embassy — no Kindle, smartphone, or even smartwatch. They all get left with security. As does cosmetics, even my little lipbalm. I also couldn’t take my paper fan. They take your passport and it goes with your documents until you pay and are called up to do your transaction. (Which can be a little nervous making.) There was a problem with the payment system (albeit solved while I was waiting) which may have meant paying cash only, so I suggest bringing cash for your transaction, just in case.
We went right on over to a DHL service center and in 15 mins the documents were on their way. The finish was anticlimactic – it was not difficult to reach the drop point, we found parking, and there were no hang-ups with the shipping process. Whew!
Learn from our mistake:
- If you get a Power of Attorney in the US, have it notarized, not witnessed.
- Even with a PoA, be prepared to go to a lawyer and local municipality for an apostille or to the Embassy for a notary. Ask this question early, that is, verify that your PoA will be accepted.