Category Archives: Power of attorney

Authenticating A Document For Use Outside Of Canada And The Hague Apostille Convention

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Introduction

Canadian citizens or residents may need to prove the validity of Canadian documentation outside of Canada. Examples might include the need to prove the validity of a marriage certificate, birth certificate or any of a number of other documents.

The purpose of this post is ONLY to alert you to the necessity of authenticating a document. It is also to distinguish the authentication of a document from what the authenticated document may allow you to do.

Part A – Why Authenticating A Document May Be Necessary

An ounce of prevention is worth a pound of cure!

Note that the authentication of a document is a different issue from the creation of a power of attorney. This is because one could have:

– a power of attorney validly created under Canadian law; but

– that validly created power of attorney might be insufficient for its intended use in another jurisdiction.

See “The Power Of Attorney: WHERE Is It To Be Used And WHAT Is It To Be Used For?” for a discussion of why you should have a power of attorney created in the jurisdiction it is to be used.

This post is focused only on proving that a document created in Canada is an “authentic document”.

Part B – How To Authenticate a document for use outside Canada

If you are working, studying, or doing business abroad, you may need proof of authentication for public documents issued in Ontario. Official Documents Services (ODS) is the authority that issues certificates of authentications and apostilles in Ontario.

Here the following link is a starting point in understanding this issue. The page is long and comprehensive. Should the link become obsolete after the publication of this post search “Authenticate a document for use outside Canada” and the new source should be revealed.

https://www.ontario.ca/page/authenticate-document-use-outside-canada

The overview of the page includes:

Overview

Notice: Effective January 11, 2024, Canada joined the Hague Apostille Convention.

Learn more about upcoming changes to document authentication.

When working, studying, or travelling abroad, end destination recipients may ask for certificates of authentication or apostilles to ensure that public documents (e.g., birth certificates, corporate powers of attorney, diplomas, etc.) are valid.

Official Documents Services (ODS) verifies the validity of documents by checking if the signatures and seals on the documents match their records. If the signatures and seals match, ODS will authenticate documents by issuing certificates of authentication or apostilles.

A certificate of authentication is an authentication of public documents utilized by countries that are not signatories of the Hague Apostille Convention, Abolishing the Requirement of Legalisation of Foreign Public Documents (Hague Apostille Convention).

An apostille is an authentication of public documents utilized by countries that are signatories of the Hague Apostille Convention.

Clients are responsible for contacting the relevant consulate, embassy, or end destination recipient prior to requesting document authentication services to understand requirements.

Part C – The Hague Apostille Convention

This is a multi-lateral treaty to provide for the authentication of documents. Information is here:

https://www.hcch.net/en/instruments/conventions/specialised-sections/apostille

John Richardson – Follow me on X.com/expatriationlaw

The Power Of Attorney: WHERE Is It To Be Used And WHAT Is It To Be Used For?

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The purpose of this post is to draw awareness to the common problem of the validity and effectiveness of a power of attorney (“POA”) to deal with a property in a cross-jurisdictional context. For example, is a power of attorney validly created in Canada sufficient to allow one to make decisions pertaining to the registration of land in Florida? The “POA” could be perfectly valid under Canadian law but NOT be sufficient for its intended use in Florida.

The validity of a “POA” where it is created is different from whether it is sufficient to be used in its effective jurisdiction.

Note also that this is a different issue from “Authenticating A Document Created In Canada”.

Q. What if a property is located in another jurisdiction and a POA is needed to deal with that specific property? Will a POA created in Canada or Europe be valid in the United States?

A. Not necessarily!

As one person commented:

I had POA for a family member, took the document to that family member’s bank in the US and they sent us back to get it notarized at the US consulate in Canada.

It makes good sense to create:

1. Separate powers of attorney for different purposes: and

2. A power of attorney in the jurisdiction where the power of attorney is to be used!

“An ounce of prevention is worth a pound of cure!”

Yesterday I participated in an IRS Medic podcast to discuss “Powers Of Attorney” and Americans Abroad.

Generally, a Power Of Attorney is created when an individual grants to an “attorney” the power to act on behalf of the grantor with respect to a particular property or issue. For example, a grantor could grant to an attorney the power to sell or manage a specific property. But, what if that property is outside the the residence or domicile of the grantor? What are the requirements that make a POA valid? Is a POA that is valid under the laws of Ontario, Canada valid in a U.S. state? The short answer is NOT NECESSARILY. Would it make sense to have multiple POAs, each of which is limited to a specific decision/property, etc? The answer is probably YES.

The reality of an individually living in jurisdiction A having to deal with property in jurisdiction B is becoming more and more common.

After participating in the IRS Medic podcast I saw the a blog post written by the Toronto law firm of O’Sullivan law titled: “Powers of Attorney: Jurisdictional Challenges“. The post does an excellent job of defining why this issue is important:

In order for a POA to be valid, it must comply with the formal POA requirements of the applicable jurisdiction. These requirements are generally concerned with who may make a POA, who may be appointed as an attorney, who may or must witness the execution of the POA and when the POA will be in force. Although the formalities may appear similar across jurisdictions, each jurisdiction generally has its own unique requirements, with the result that extra-provincial/extra-territorial or foreign country POAs may not be recognized locally.

In summarizing the problem, the article includes:

Problems caused by the lack of uniformity in POA law among various jurisdictions are becoming well known to the legal community. The uniform law commissions of Canada and the United States have enacted uniform model POA legislation which, if implemented in these jurisdictions, would solve many of the various problems that exist with divergent laws. Some progress in this field has been made, however, a complete overhaul of the POA laws is far from complete. It is therefore imperative that individuals who have ties to other jurisdictions speak to their lawyers about having valid local POAs as part of their personal, estate and incapacity planning so that inconveniences such as those recently encountered by the Ontario couple can be avoided.

Bottom Line:

To be forewarned is to be forearmed. It makes good sense to have a POA created in accordance with the laws of the jurisdiction where the POA is to be used. For example: If you are a U.S. citizen living in Canada and a POA of needed to manage a property located in the United States, the UK or any other country, consider the creation of a separate POA for that particular jurisdiction!

John Richardson – Follow me X.com/ExpatriationLaw