Legal Translation Services Keep a Power of Attorney from Losing Its Power
More and more legal professionals today find themselves needing certified legal translation of a Power of Attorney (POA) that is either entirely in a different language, or is partially written in a language other than English. The significance of a Power of Attorney document for someone’s life makes it so vital that all of the provisions of a Power of Attorney are understood and honored. This article will touch upon the various issues that arise when dealing with a Power of Attorney document, and discuss what to do with a Power of Attorney that is either entirely, or partially, in a different language.
What Does a Power of Attorney Do?
Stripped to its essence, a Power of Attorney is a legal document that gives an agent (sometimes referred to as the “attorney-in-fact”, or legal representative) authority over decisions regarding the principal’s legal affairs. The principal is sometimes referred to as “grantor” or the “represented party“. There are many situations in which it is instrumental to have another person available to make financial and health decisions, such as when the principal is out of the country or becomes incapacitated.
In many cases of mental incapacity, state law will kick in and force a court to appoint a guardian. Use of a Power of Attorney can avoid the appointment of a guardian. Thus, if you want control over who administers your affairs in the event of mental incapacity, then it is important to properly plan ahead of time. Without such planning, it is very possible that a court will appoint an objective, disinterested, and possibly less competent, guardian for you. Indeed, you want the control over the person who decides how your affairs are ordered after you are unable to handle them yourself.
As you would expect, a Power of Attorney gives the designated person, the agent, virtually any authority over your affairs from signing checks from your bank account on your behalf to making real estate, living will, and other personal decisions. However, it is important to note that a Power of Attorney does not give the agent the power to do whatever he or she wants. Rather, the Power of Attorney must always act in the best interest of you, the principal.
Power of Attorney (POA) vs. Durable Power of Attorney (DPOA)
It is important to understand the distinction between a regular Power of Attorney (POA) and a durable Power of Attorney (DPOA). With a regular Power of Attorney, the agent can engage in legal business on behalf of the principal until the principal either dies or is incapacitated.
A durable Power of Attorney, by contrast, can continue on after the principal becomes incapacitated. Thus, the agent with a durable Power of Attorney can make decisions for a mentally incapacitated principal. A Power of Attorney, however, always ends at the death of the principal.
Some Basic Tips With Regard to a Power of Attorney
1. A Legally Incompetent Person Cannot Execute a Power of Attorney. A person deemed legally incompetent cannot execute any legal document, including a Power of Attorney. It happens frequently that a person will call a lawyer, stating that a doctor has declared a family member incompetent and asking for the lawyer to draw up a Power of Attorney for the family member. It does not work that way. A person can only designate a Power of Attorney when they are legally competent to do so.
2. A Template for a Power of Attorney Either From the Internet or Elsewhere Is Not Something You Should Use. There are many Power of Attorney examples available, particularly online. However, it is not recommended that you use them. A Power of Attorney should be tailored to the specific circumstances of the principal’s case.
3. A Power of Attorney Must Act In the Principal’s Best Interest. Giving an agent Power of Attorney does not mean that the agent has carte blanche to do whatever he or she wants. The best interest of the principal is the paramount concern.
4. A Power of Attorney Does Not Always Give Full Authority. There are general Powers of Attorney and limited, or special, Powers of Attorney. The principal determines which, and how many, powers to give to the agent serving as Power of Attorney.
Don’t Forget to Include a POA Translation Clause
One thing that is important to consider ahead of time is how your Power of Attorney will be translated. We at All Language Alliance, Inc., often get requests to translate Power of Attorney documents into Portuguese, Spanish, Russian, Chinese, Korean, French, Polish, German, and many other languages. Yet, it can be problematic if the actual Power of Attorney does not specify how the document should be properly translated.
For example, a person asked to accept a Power of Attorney that is not entirely in English will want a full English translation before carrying out the request of the agent. State laws throughout the country are now tackling that issue. In Texas, for instance, the new Power of Attorney rules provide that the principal or agent can select a translator to translate the document at the principal or agent’s expense. In fact, in Texas, the person asked to accept the Power of Attorney may ask for an English translation, an agent’s certification, and an opinion of an attorney.
A Power of Attorney, then, should include the issue of translations in the POA document for clarity.
Certified Translation of an Apostille Power of Attorney to Be Used in Brazil, Colombia, El Salvador, Mexico, Venezuela
If the Power of Attorney signed in the U.S. is to be used internationally, it must be notarized in the U.S. and must be apostilled by the State the document was notarized in.
The United States is a party to the 1940 Pan American Protocol on Uniformity of Powers of Attorney which are to be Utilized Abroad, 56 Stat. 1376, 3 Bevans 612 (Protocol) along with Brazil, Colombia, El Salvador, Mexico and Venezuela. This international treaty provides for the recognition of notarial acts attesting to the identity of the person executing an instrument and to that person’s legal authority to do so. While this is a common function of notaries public in countries with civil law traditions, the notaries public in the U.S. do not have this kind of authority. The Colorado Secretary of State’s office, for example, often receives authentication requests for notarized power of attorney documents (POAs) intended for use in Mexico per the 1940 Pan American Protocol on Uniformity of Powers of Attorney to be Used Abroad. These POAs often contain legal conclusions by the notary, including statements about the legal capacities of the parties involved. The Colorado Secretary of State’s office will not authenticate these types of POAs, unless the attesting notary is also an attorney licensed to practice law in Colorado.
All Language Alliance, Inc. invites you to learn more about our multilingual Power of Attorney translation services. Having handled notarized and certified translations of POA documents for decades, we can provide you the best quality, best accuracy, and best service for your foreign language legal translation needs.
**This legal translations blog article should not be construed as legal advice. You should always consult an attorney regarding your specific legal needs.