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Electronic documents

Some documents are only issued electronically. There is no original paper version. It has even been signed with an electronic signature. The original therefore is an electronic document. When notarising the notary will need to say that it is a true copy of the original document, such original existing in electronic form. My view is that there is no hard form original and once it is printed it is a copy.


Power of Attorney Documents for India (Real Estate, Legal, Divorce, Banking)

When you live in Australia but you have business or family dealings in India, it’s often recommended to grant a power of attorney to someone living there, so they can legally act for you if required.

Some of the more common reasons to grant a power of attorney include:

  • A legal dispute  

  • Buying or selling real estate

  • Divorce proceedings

  • Probate

  • Other family matters

If you do not wish to go to India to look after these proceedings, you will need to finalise a power of attorney statement that is legally recognised in India. It if possible to legalise a POA without having to go. But this requires the services of a Notary Public (like myself). Here are the steps:

First Step – Your Indian Solicitor

The first step is to have your solicitor back in India create the POA statement for you and to send it here for you to sign in front of a Notary Public (like myself, a Sydney Notary Public or John Pearce a Notary Public in Melbourne). You may need to ask your solicitor if it needs to be produced on bonded or stamped paper. If this is the case, you will need to have the document posted here as notaries in Australia cannot provide this type of paper. In most cases printing out your document on standard A4 paper will suffice.

Second Step – Specific Instructions

India often provides mixed advice when it comes to accepted forms of notarisation. This is why it is highly critical that you work with your Indian Solicitor to ensure we carry out the Notarisation in an accepted form. Please request from your solicitor back in India specific notarisation instructions to minimise errors.

Potential requests:

  • Photographs of the executant, donor or attorney may need to be needed

  • The executant or donor may be required to sign the photograph of themselves

  • A seal over the photographs

  • 1 or more witness signatures on the power of attorney statement

  • Fingerprints may also be needed

Third Step – Notary Public Bookings

Book an appointment with me. Bring 100 points of ID including any witnesses that may also need to sign the document. If you cannot bring a witness, ask your notary if they can assist with a staff member or colleague.

Fourth Step – DFAT or Consulate

Depending on the instructions from your Indian Solicitor, you may need to take the document to DFAT’s passport office. This is likely so you should check whether you need an Apostille (from DFAT).

Should you need further advice or would like to make a booking. Please call this office on 0402 357 086 to do so.


Academic Transcripts – please note

 

If for any reason DFAT asks you to have your academic documents notarised the notary will need to verify that the document is genuine, eg Degree Certificate or Academic Qualification (in the case of results).

Sometimes the Notary can do this online after being provided with the Student Number, Name and Degree Award. Some Universities do not have this online verification system.

Check how your academic results or your degree can be verified:

See: http://smartraveller.gov.au/services/legalising-documents/pages/australia.aspx#what-is-a-notary-public

If no online verification system exists a Notary may still be able to verify by you using your personal log in details on the University website.

To increase the chances of the notary being able to verify here are some tips:

  • make sure you have the student name, number and log on details, ie passport (keep them confidential!) That way you can log in on the spot with the notary and access the information from the University site to confirm details.
  • Have a signed statement from the student authorising the Notary to receive information from the University (Universities have privacy policies restricting release) – in case the Notary needs to contact the University direct
  • Attach the document you want notarised to an email and ask the University to confirm it is valid by reply email. See sample suggestion wording for this email below. Have the email and reply from the University handy so it can be forwarded to the Notary if necessary.

If the student login details do not show the information then the Notary will need to write to follow the procedure for that University to obtain verification. This usually means completing a set form or writing to the University. This will take time!!

(NB the student will also need to give the Notary written authority for the University to release the information)

Here is a sample email [feel free to change as you need, its just a guide, and check that there is not a formal confirmation form for your particular University]:

Dear Sirs/Mesdames

I am a student/former student of your University. Attached are copies of documents issued by your University to me. I note you have certified they are originals/true copies. I intend to have these legalised at DFAT. Please reply to this email (by forward, ie including the attachments) so that if I need to, I can forward it to the Notary. Please confirm that the contents of these documents are genuine and issued by your University. I also authorise you release information to xx [name] Notary that contacts you by phone or email and relays to you the information contained in this Attachment.

Regards and thanks [Student]


How to fill in the DFAT Form

When you lodge documents at DFAT in person or via post you need to complete the Document Service Request and Payment Form. See the link to the form:
https://smartraveller.gov.au/services/legalising-documents/Documents/document-legalisation-request-form.pdf

Some things:

  1. Your Details – does not need explanation
  2. Type of documents – just an identifier, eg Statutory Declaration, Power of Attorney. If you have more than one you can say eg Company documents, or Stat Dec and POA or employment related documents.
  3. Country – most people are clear to where the documents are going.
  4. The DFAT officer can complete this for you. Some countries will be issued an Apostille. A list of these countries can be found at:
    https://www.hcch.net/en/instruments/conventions/status-table/?cid=41
    If the country is not on the list then it will be an Authentication.
  5. If you want DFAT to post it via regular mail they will, for free (domestic or regular Air Mail). If you want the mail to be traceable (highly advisable if it is important documentation) then I would include an express post trackable envelope filled in with your return details. Also, its up to you but I would have DFAT send everything to someone in Australia and then have that person arrange for the postage overseas. That way they can ensure it is traceable courier or mail.
  6. Credit card authorisation details – DO NOT complete if you are attending in person with an appointment. You only need to complete this if you are posting the document to DFAT. Also, please note DFAT ONLY accepts payment by eftpos card. DFAT will not accept CASH or cheque.

 

 


Name on India Passport different to licence

You may be requested to notarise a statement saying that your different names on your India Passport and India Driving Licence relate to you. The notary can prepare this statement and then notarise it. The notary will charge you for the preparation and then also the witnessing (notarisation) fee. It will be cheaper if you prepare the statement yourself, so that you only need to see the notary for the witnessing. We recommend using the Statutory Declaration form. In Australia we only use Affidavits where there are court proceedings. India is familiar with the use of the title Affidavit. We have successfully used Statutory Declaration form for Indian clients. (Do a google search for statutory declaration NSW Oaths Act – you should get a format) Here is one link with the format (don’t worry about the reference to JP its just for the format):

http://www.jp.nsw.gov.au/justices-of-the-peace/information-for-jps/performing-your-role-as-a-jp/nsw-statutory-declaration

Here is an idea for wording for the body of the statement (you can be more specific but here is a simple version):

  1. The name on my India Driving Licence is stated as [state]
  2. The name on my Passport is stated as [state]
  3. Both the names on my India Driving Licence and Passport relate to me as one and the same person.

If it is a Statutory Declaration you will have to complete the formalities. If you want to use Affidavit form (as an Indian Affidavit) then check the formalities for that document and present this to the notary who will witness it in that format. I have seen formats which have the heading “Affidavit” and “I xx [state full name on Passport] do solemnly and sincerely swear/affirm that: [See points 1-3 above]

 


You need an appointment at DFAT for Apostille or Authentication

DFAT issues Apostilles and Authenticates documents. In the past, you could lodge at the counter any time between 8.30 and 1 pm. No longer. DFAT has changed its policy. You cannot arrive at the counter and lodge an document without an appointment. Forget begging and pleading  – if you do not have an appointment they will send you away. Trust me, its happened to my assistant.

You can get an appointment by phoning this number: 1300 935 260.

Or you can post it to DFAT. For Sydney: Australian Passports Office, Authentications Section, GPO Box 2239, SYDNEY NSW 2000.

Note** You need to complete a Legalisation Request Form for both forms of lodgement. You can find this at http://smartraveller.gov.au/services/legalising-documents/documents/document-legalisation-request-form.pdf

My tip: If you post, always send your documents in an express envelope so you can keep the tracking number. You don’t want to lose important documents after the cost and time to notarise.


Which is cheaper: Fly back home or see the Notary?

Notaries in Australia are not cheap. They are qualified lawyers with several years experience. The fee scale for Notaries in NSW can be found at www.notarynsw.org.au/fees-scale. Mostly you are being asked to notarise the documents in Australia because you are not in the overseas country where it needs to be signed. If you were overseas in many instances you could sign it there. Notarising a document in NSW is cheaper than flying overseas to do it. And this doesn’t take into account the time involved in flying there and back (which would mean taking time off work) For transactions with several documents you can also negotiate a discount or preferred rate. 


Good preparation saves money

There are simple things you can do to save money before you see a notary. Otherwise a notary is entitled to charge for the time it takes to do this work.

If you are having documents certified as true copies you do not need the notary to make the copy (since the notary will compare the original against the copy) You can bring in the copy and the original of each document.  Today I had a client bring in lengthy documents which were printed front and back. It took me over a quarter of an hour to make the copies.

If you are signing on behalf of a company and the notary is required to confirm that you are an officer it makes sense to have an ASIC search ready to verify details (although many notaries including myself will insist on doing the ASIC search themselves).

The rule of thumb is to think through anything that you can do in advance. If in doubt call ahead and discuss with the notary.  You may also want to send documents in advance for the notary to review. The notary is entitled to charge for this but it is usually more cost effective than sorting out problems in a consult.


Can a notary issue an “Apostille”?

In Austalia, documents can only be apostillised or authenticated by the Department of Foreign Affairs.

You cannot, however, obtain an apostille (or have documents authenticated) until the notary function is performed. This is the case unless the documents are original documents issued by Australian Government Departments with an official signature, seal or stamp.

DFAT will not accept a Justice of the Peace for Authentication or Apostillisation.

So the process mostly looks like this, notarisation, apostillisation (or authentication) and then if necessary legalisation by a specific embassy.

If the overseas country requires an apostille and you see a notary but overlook obtaining the apostille your documents will most likely be rejected.

In Sydney, the authentications and apostillisation section of the Department of Foreign Affairs is at Level 7, 26 Lee Street Central (the Passports office). Opening hours are 9 am to 1 pm so make sure you lodge during this time. You will need to leave the documents with the Department and turn-around time is approximately 3 business days. See the DFAT website for more details www.dfat.gov.au

**note  – since writing this article DFAT no longer accepts “walk in” counter lodgments. You need an appointment to lodge over the counter. Turn around time, however, is now usually 1 day. Updated: 19/5/2017


Make an appointment with the Notary

Making an appointment with a notary is recommeded. If you arrive at our offices without an appointment we will do our best to fit you in to see one of our notaries.
At times we will not be able to accomodate. What a waste time!
Notaries are also solicitors. We might be in another meeting. Or out of the office.
At minimum be sure to phone ahead. At SYDNEY NOTARY, we are available at short notice but we still need some notice.

Watch your signature!

I am surprised at how many people’s signatures evolve over time. They have passports which are current for 10 years and during this time their signature changes. It might become abbreviated, or even shortened to remove a middle name. Their current credit cards reflects the new way of signing. If this is the case make sure you have at least one form of photo identification with the “new improved” signature. The notary can always ask you to sign for him or her using the old signature (to prove it was you) but sometimes without practice these old signatures can be hard to replicate. The notary will determine overall that you are the person you identify yourself to be but having a consistent signature helps.


Be wary of notaries being too cheap

The government has a recommended scale for notary fees. You can find this at www.notarynsw.org.au

There is a reason for these listed fees. These reflect the professional time costs of performing the various items.

Some notaries undercut these fees and opt to charge less. This might mean that they are choosing to make a loss on the real time needed to perform the task. Of concern however is when the notary rushes the task since they have ‘underquoted’. They might be short with a client, or not ask as many questions or just rush a job inviting inadvertent mistakes.

Personally I would be wary of using a notary who charges noticeably less than the recommended scale. I have had to fix notarial work of notaries who haven’t completed jobs with proper diligence and care.

Of course, the matter is up to you, but the recommended scale exists for a reason. And that reason is that it is a fair estimate of the charges.


Don’t get caught out with witnesses

Some powers of attorney and other documents need a notary to witness the document plus two additional witnesses.

I have seen these documents more than once. Usually the client doesn’t inform me and then I have to quickly find two colleagues to witness the signatures.

If your document requires you to have these two additional witnesses be sure to raise this with the notary when making a booking.

Some notaries will charge for bringing in the additional witnesses. Some may not. You always have the option of bringing two of your friends (but note NOT family).

This way you are supplying the witnesses and there should be no need for any additional charges.

If you are not bringing the additional witnesses you should give the notary adequate notice so that he or she can organise for the two additional people to be available at your appointment time.


Things to know about Apostilles

I often get asked the following “I need an Apostille. Can you provide one?”
A notary cannot issue an Apostille. The Department of Foreign Affairs (DFAT) is the only body in Australia that can issue an Apostille. Although there are exceptions, DFAT will not issue an Apostille until a notary notarises your documents.
So the first step to obtain an Apostille is to see a notary.
Some notaries and others offer Apostille services (which means they will handle the lodgement process at DFAT). If you live in Australia you can make the lodgement. You can search the DFAT website for further information.

How to know what a notary should be charging you

Most people want to know how much the notary will charge for notarising their documents.
A notary cannot give a definitive quote until he or she sees your documents and can assess your exact matter requirements.
The notary, however, can give you a guide as to how much the fees might be.
The various state governments have prescribed recommend fee scales.
In NSW these can be found by going to the following link:  www.notarynsw.org.au/fees_scale.
You can also find the relevant websites in other states at www.notarynsw.org.au/links

Notary Clients wasted money – check your overseas documents

If your document is for use overseas then it needs to comply with the laws of that country.
My advice is to research as much as possible what form is needed for the overseas country. That way, when you attend before the notary you are clear what is needed from the notarial function in Australia.
If your matter does not warrant use of a notary or lawyer overseas to manage the matter then I recommend contacting the relevant embassy or consulate and asking them for guidance on how to get your document for that country. An example of this is for a Power of Attorney for use in India.

My document is in a foreign language, can I sign it in front of a notary?

The answer is “It depends”  There is one argument that if the notary simply identifies you and makes it clear that he or she does not understand the language and is just performing the notarial witnessing function, then the notary can perform this role. This may be acceptable to the recipient. But it may not be what the recipient is looking for. Please call us to discuss the facts and circumstances for your matter so we can advise you on what is needed.


Can I use a JP instead of a notary?

I get asked this question often. “Can I use a JP to take care of my documents? JP’s don’t charge but notaries do?”

Notaries and JP’s perform similar functions in that they both witness documents, take oaths and verify copies of originals.

The rule of thumb however is that if the documents are for use outside of Australia then you need to use a notary.

As one of my colleagues once described, Notaries are “international JPs”.

 


CHECK YOUR FORMS

Often forms are created overseas and need to be signed by the person the form is about and also by a notary. Before you see the notary you need to read the forms and see if they require the notary to say things about you. In almost all cases a notary will not be in a position to attest to facts which concern you. You need to check with the place to where the forms are going overseas whether it is ok for the notary to amend the form so he or she is comfortable to sign about the things he or she does know and cross out the other things.

If the form cant be amended you will need to bring evidence to prove to the notary the contents of the form. For example, if the form requires the notary to say you are a director of a company you need to bring a company search or document showing that you are appointed as a director. Otherwise the notary may have to turn you away, which is a waste of everyone’s time, and a notary may charge for the consultation.


The biggest mistake you can make before seeing a notary

It happens more often than you think. People need to sign something before a notary as witness but they sign the documents before they come in. I then have to request that they sign the document again so I can witness the signing. It is not a good look to have two signatures on a page. Otherwise we have to take steps to get a blank version of the form for them to resign. Unless they happened to have a spare handy, this involves accessing the internet from my office and reprinting or accessing via email.

Sometimes a customer has to phone back to their office to have someone email me the document. If the form has preliminary details to complete before signing (name, address and so forth) and customers then have to fill them in whilst at my office. All this takes up professional time and does not assist me to stick to price guidelines for documents. In summary if your document needs a witness then you must allow your witness to witness you signing.