LEGAL UPDATE by Charlotte Oliver: A power of attorney (“procura generale” or “procura speciale”) must be drafted and signed in a valid form acceptable in Italy, in order to give the power to another person to carry out transactions such as the purchase or sale of property, to act in a succession in Italy, to deal with financial affairs and bank accounts or to set up a company.
If the power of attorney is signed in Italy, the signature must be witnessed by a Notary Public. This is not always straightforward if the person giving the power of attorney does not speak Italian, although can be made in the person’s own language, if the Notary declares that he knows that language, and would need to be accompanied by a sworn translation into Italian.
If the power of attorney cannot be signed in Italy, it can be signed in any other country, but the procedure will always differ depending on whether the country has ratifed the 1961 Hague Convention Abolishing the Requirement for Legalisation for Foreign Public Documents, the Apostille convention, or whether the person signing is an Italian citizen.
The power of attorney signed abroad for use in Italy will be treated under the rules of the “atto straniero” and therefore in order to be valid must have been legalized (according to Italian Law art.33 Of T.U. 28 dicembre 2000 n. 445 . The procedure of legalization is designed to satisfy the Italian authorities that the signature of the power of attorney was authenticated by a person having the power of authentication in that Country, that is that the document can be considered a “public deed” as opposed to an “authenticated private deed”.
A power of attorney signed before an Italian Consulate overseas is considered to have been signed in Italy and will not require legalization, although the Consulates generally only provide services to Italian nationals.
A non-Italian signing the power of attorney outside Italy needs to go through a two-stage process, firstly they must sign before a competent person under the rules of that country, usually a Notary established in that country, and secondly the power of attorney signed and witnsessed, must then be legalized.
If the country where the power of attorney is signed is a contracting party to the 1961 Hague Convention, the legalization procedure is straightforward. An “Apostille” certificate is attached by the Foreign Office or equivalent ministry, to confirm that the person who witnessed the signature is recognized as an official of that country and validating his seal or stamp. In many cases the Notary who has witnessed the power of attorney will also arrange for the Apostille as part of the service.
Some EU countries including Belgium, Ireland, Denmark, France, Germany and Spain, although parties to the Apostille Convention, have signed bilateral agreements with Italy (ratifying the 1987 Brussels Convention) and a power of attorney signed in those countries will not need an Apostille. A power of attorney signed in the UK will always need to have an Apostille fixed by the Foreign and Commonwealth Office in London.
Where the country is not a party to the Hague Convention the power of attorney will go through a three stage process: signtaure in front of a person competent to witness, legalization of the signature and finally the ratification by the overseas Italian Consulate.
In some cases a bilingual power of attorney ie with the text in both Italian and English and signed under both versions, will be accepted in Italy, usually where the Italian Notary can declare that he knows both languages. However, a Notary in Italy can insist that this is signed only in one language and then a an offical sworn translation into Italian attached.
In order to avoid the power of attorney being considered invalid in Italy, as authorities such as banks or the tax authorities may interpret the Notarial rules with greater or lesser strictness, it is wise to check from the outset what is required in order to perform the transaction needed, for example to close a bank account and transfer funds to the heirs who are resident abroad.
Banks in Italy are particularly suspicious of powers of attorney signed abroad, in some cases will even insist that the power of attorney is also “authenticated” by being deposited in Italy by a public deed signed by ana Italian Notary. The deposit of the power of attorney in Italy is therefore an extra check on the validity of the contents of the document, in that it is then considered to have been approved as not in violation of Italian law. (See Italian Law art. 33 D.P.R. 445/2000; art. 106 Legge Notarile).