When is a power of attorney required?
It is worth noting that since 2014, cases of fraud have become more frequent when concluding various transactions on the basis of a power of attorney issued by a notary. How does this happen? Fraudsters enter into contracts on the basis of a document that, for example, has lost its force or has been revoked by the principal. Accordingly, such transactions are declared invalid by a court decision. As a result, the buyer (if something was purchased) is left without money and without the purchased property.
There are cases when scammers use powers of attorney that were never issued.
They forge forms and seals of existing notaries. Without a thorough check, it will not be possible to detect such a fact of forgery.
The power of attorney must be checked in such cases.
:
- concluding agreements between individuals;
- when purchasing real estate or other property;
- concluding transactions between legal entities and individuals;
- registration of permission to dispose of property, and so on.
It is imperative to check the power of attorney when purchasing real estate. After all, scammers use exactly this method of selling.
By law, verification of the authenticity of a power of attorney is not mandatory. This is more of a recommendation when concluding any transactions to ensure buyer protection.
Article 185 of the Civil Code of the Russian Federation states that the authority of a representative of an individual or legal entity is confirmed by a power of attorney certified by a notary. It is issued for a certain period. It must indicate the powers of the representative.
For those certified by other persons
How to check the authenticity of a power of attorney by number in this case depends on how conscientiously the hospital, military unit, or prison maintains documentation. It is possible that the institution has its own registration register. Then it is enough to contact the manager with an official request, and he will confirm or deny the authenticity of the number. If not, then the most he can do to help is to testify.
Legal documents
- Chapter 10 of the Civil Code
- Articles 185
- 185.1
Who has the right to check the authenticity of a power of attorney?
Firstly, these are the persons who are directly involved in the transaction. Secondly, investigative and judicial authorities and their representatives. Thirdly, legal representatives in whose name the power of attorney was issued.
Until 2021, third parties could not participate in document verification. This rule was enshrined in law. They could only check that the power of attorney was filled out correctly.
Such measures were taken based on laws and regulations regarding the confidentiality of information about documents.
Since 2021, everything has changed. FNP (Federal Chamber of Notaries) has opened a service where you can easily verify the authenticity of a power of attorney. This has significantly reduced the number of illegal transactions.
Who can verify the validity of a power of attorney issued by a notary?
According to the provisions of Art. 34.4 “Fundamentals of the legislation of the Russian Federation on notaries” (approved by the Supreme Court of the Russian Federation on February 11, 1993 N 4462-1) (as amended on May 23, 2018), the Federal Notary Chamber provides access to the information contained in the unified notary information system to everyone. Therefore, if you are interested in checking the authenticity of a power of attorney, use the official website where you can find the necessary information. The online verification service is provided around the clock and completely free of charge.
What information can you find out:
- information about the person certifying the power of attorney;
- date of certificate;
- registration number of the document in the register of notarial actions of the UIS notary;
- the date and time of entering information about the cancellation of the document into the register if it was cancelled.
It is worth noting that any actions performed by a notary are entered by him into the register of notarial actions of the UIS immediately. They are also confirmed by an enhanced qualified electronic signature of a notary. Therefore, there is no need to doubt the information obtained through the system.
Ways to verify a power of attorney
There are several of them:
- on the official website of the FNP in the register of powers of attorney;
- upon written request to the Federal Tax Service;
- directly from the notary who issued the power of attorney.
Let's look at each of them.
Check in the register on the FNP website
To do this, you need to go to the Internet resource https://www.reestr-dover.ru/ “Checking powers of attorney using details.”
In the window that opens, there will be a form in which the required fields are marked with asterisks. The user needs to provide the following information
:
- document registration number;
- date of its certification (certification);
- information about who exactly certified the power of attorney (full name of the notary/consular officer/local government official);
- the region in which the power of attorney was certified.
After this, you need to click on the “Find” button.
The automatic system will provide information about who issued the document and when, its validity period and other data. If errors were made when filling out the form, the system will prompt you to clarify the document number or full name of the notary. If the power of attorney has been revoked, information about this will be on the screen.
Written request to the FNP (Federal Notary Chamber)
This method of verification cannot be called operational. It takes time for the request to be delivered. And then the answer should come to it.
So, to find out the authenticity of the power of attorney, you need to make a written request. There is no approved form for it. You need to indicate in it the details of the power of attorney and the name of the notary who issued it. It would be useful to attach a copy of it. The request must be sent by registered mail with notification.
Advice. To quickly check the authenticity of a power of attorney, it is better to use the service of the Federal Notary Chamber.
Check with a notary
Each document certified by a notary contains his contact information. To verify the authenticity of the power of attorney, you can contact the notary who issued it.
The verification service is paid.
Unfortunately, no notary is immune from fraudsters. Any forms can be forged, as well as signatures with seals. Therefore, if the notary’s database does not contain information about the requested power of attorney, this does not mean that he is in collusion with a criminal group. This will serve as a signal for him to contact law enforcement agencies.
How to check the authenticity of a paper that was issued without a notary
In some cases, notarization is not necessary. A paper certified only by the signature of the principal (a simple written form) is suitable for obtaining documents, certificates, concluding contracts for the provision of communication services and utility services, etc. A power of attorney to receive a salary is quite common. Usually it is certified at the place of work by the employer, without the participation of a notary.
To ensure that the document is genuine and up-to-date, pay attention to:
- document details;
- date of issue;
- its validity period;
- authority of the issuer.
You should also study the list of powers of the representative and make sure that he has the right to perform the necessary operations.
We invite you to familiarize yourself with the sample.
Checking a canceled power of attorney
It is also performed on the FNP website. To do this, go to the “Information on cancellation of power of attorney” tab.
To find the information you need, click on the “Search” button. A new window opens.
It contains the following information:
- document registration number;
- the date of his certificate;
- Full name of the notary and other necessary information.
After filling out the fields, click on the “Find” button. If the system has information about revoking the power of attorney, it will appear on the screen.
Simple and notarized powers of attorney
Not every power of attorney requires notarization. According to the Civil Code (Article 185.1 of the Civil Code of the Russian Federation), it is necessary in three cases:
- if the transactions for which it is issued must be certified by a notary (for example, when alienating apartment shares to third parties or in transactions involving minors);
- if the document is needed to submit an application for state registration of rights;
- if the power of attorney was issued to dispose of rights registered in various state registers.
In other circumstances, the power of attorney is certified by a notary at the request of the parties to the transaction in order to give the document weight. If such a desire does not arise, the principal has the right to draw it up in simple written form, indicating to whom, what authority and for how long he is going to transfer. The issuance of a power of attorney means that the trustee receives the authority to act on behalf and in the interests of another person (the principal).
It is easier to check a notarized power of attorney, since its details are entered into a special register, partial access to which has been open to all interested parties since 2017. Accordingly, a simple power of attorney does not fall into it. However, there is also some chance to check its validity. Lawyers strongly recommend making every effort to verify the power of attorney, whatever its form.
When it is not possible to check the power of attorney on the FNP website
It happens that when checking a document, information about it is missing in the system. This does not mean that the document is fake.
The system does not provide information about powers of attorney that were certified before 01/01/2017.
But there are cases when a power of attorney was issued after this date, but there is no information about it in the general register. What does this mean
:
- the power of attorney was not certified by a notary (the authenticity is in doubt);
- the issuance and execution of the document was carried out on the day of the inspection on the FNP website.
Information in the registry is updated within a few days
. Therefore, it is better to play it safe and enter into transactions after the document has been verified.
If the power of attorney has not been entered into the general register of the Federal Notary Chamber, you should seek help from the notary who issued it. It is better to postpone the conclusion of the transaction while the document is being verified. Otherwise, you can fall into the hands of scammers, who often act on the basis of invalid powers of attorney.
For a simple shape
There are situations when a document is drawn up without the participation of a notary, and there are doubts about its authenticity. Perhaps the principal has no idea about the existence of a paper where he transfers authority to another person.
If it is impossible to check the authenticity of the power of attorney online, you need to find and contact the principal to confirm the authenticity of the document. If this is difficult to do, all that remains is to carefully proofread the text. The scammer could have made a mistake:
- in writing full name;
- in passport data (for example, used an expired document);
- at the registration address (I didn’t know that the victim had changed his registration).
The last way to restore legality will be a handwriting examination. But only the court can appoint it.
Moscow City Notary Chamber
A service for checking notarized powers of attorney has begun operating on the website of the Federal Notary Chamber. This resource is part of the Unified Notary Information System (UIS) and was formed in accordance with the provisions of Federal Law No. 332-FZ of July 3, 2016.
In the public domain, by indicating the details of the document: date of certification, registration number and full name of the certifying notary, you can verify whether such a document was issued and whether it is relevant today.
State and municipal authorities have been given more expanded access to the service. If a notarized power of attorney appears in the provision of public services, it must be verified using the new service. To do this, a civil servant or municipal official sends a corresponding request to the Unified Information System, attaching a scan of the power of attorney he has, and the system, after comparing it with the original, gives an answer about the consistency of the text or the presence of discrepancies.
With the current level of technical capabilities, paper forms of any degree of security, seals, signatures are easily forged, and these illegal services are publicly available on the Internet. Notaries have had to deal with the most sophisticated methods of falsifying notarial acts: using real forms and even changing the text in an actually issued power of attorney. Electronic notary services completely eliminate forgery.
First of all, the innovation will increase the security of the real estate market. Fraudsters will not be able to use fakes when registering rights to someone else's real estate in any transactions. The registrar can easily check whether the seller has transferred the corresponding powers to another person. If the verification procedure is not carried out, and the transfer of rights under a fake power of attorney is registered, then the government department will have to answer for the negligence or malicious intent of its employees.
An equally important innovation is the procedure for revoking a power of attorney. Previously, this was a rather troublesome and time-consuming procedure, which did not give the principal any guarantees that the attorney would not use the powers given to him. It was necessary either to independently inform all interested parties, or to place an advertisement in the Kommersant newspaper at very serious prices, the legal consequences of which came only a month from the date of publication.
Now any power of attorney, and not just a notarized one, can be easily canceled through a notary, who, having certified the fact of cancellation, will enter the necessary data into the appropriate register of the notary's UIS. The very next day, all interested parties will be considered notified of the cancellation, since the register of canceled powers of attorney of the EIS notary has been given public status by law. This means that without checking documents through this resource, there is a risk of incurring full liability for an illegal or invalid transaction.
The electronic service for verifying powers of attorney is not the first project of Russian notaries that promotes transparency in civil legal relations and protects the rights of bona fide participants in civil transactions. In 2015, a register of notifications of pledge of movable property began operating in the EIS system, which also has public status.
Now citizens and entrepreneurs have every opportunity to verify the legality of powers of attorney. You just need to be very careful, and when making transactions under a power of attorney, be sure to verify their authenticity on the website of the Federal Notary Chamber.
Who is eligible for verification?
The register of powers of attorney allows you to obtain information about notarial forms entered into the database. The following persons can use the functionality of the site:
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- Interested parties involved in the transaction;
- Law enforcement officers;
- Persons authorized by the court;
- Those for whom the document is issued;
- Other citizens.
Based on the enabling legislative provisions adopted in 2021, any interested person can obtain information through the official service of the Federal Notary Chamber. The presence of such an opportunity significantly reduces the likelihood of concluding an illegal transaction.
Who has the authority
In accordance with the current legislation, which establishes a ban on the transfer of information about documents executed through a notary, only the following categories of persons can obtain information about a power of attorney:
- parties directly involved in the process of drawing up this document in the presence of a notary;
- legal representatives in whose name the power of attorney was issued;
- authorized judicial or investigative officials;
- bailiffs who require this information to perform their professional duties;
- notaries.
You can now opt out of them through publication
Since September, amendments to the Civil Code come into force, which make it possible to notify about the cancellation of any powers of attorney through publication in the official publication where information about bankruptcy is published. This will simplify the procedure for notifying counterparties and all third parties, and will also remove the risks of abuse by the representative. Now all third parties will be considered automatically notified of the revocation of the power of attorney after a month from the date of such publication.
Yesterday the amendments to Art. 189 of the Civil Code (“On the cancellation of powers of attorney”) that if any powers of attorney are cancelled, a publication may be made about this in the official publication in which information about bankruptcy is published. In this case, the signature on the application for revocation of the power of attorney must be notarized. All third parties are considered to have been notified of the revocation of the power of attorney after a month from the date of said publication, unless they were notified of the revocation of the power of attorney earlier.
The Concept for the Development of Civil Legislation of the Russian Federation states that such measures will protect the represented person from cases of changes or establishment by the previous representative of the rights and obligations of the represented person in relation to third parties. Artur Rokhlin, partner at the YUST law firm, explains that until now, a representative under a revoked power of attorney could for a long time carry out actions on behalf of the company or the person who issued the power of attorney, and third parties thought that he was an authorized representative. “This gave rise to a large number of legal disputes, which the amendments will certainly reduce,” the lawyer is sure. “And unscrupulous contractors who colluded with the representative who has lost confidence will now not be able to claim that they did not know about the revocation of his power of attorney.”
Termination of powers of a person who has lost trust is especially important in a situation where the company’s management changes or there is a corporate conflict. For citizens, amendments to the Civil Code will also be useful, especially if the power of attorney was issued for a long period and is intended to be presented to a large circle of people or to represent interests in government bodies. Similar experience in notifying all interested parties already exists in relation to bankruptcies, messages about which are also published.
“Since the person being represented may not be able to notify everyone personally, it is now possible to notify about the revocation of a power of attorney in the form of publication in an official publication,” the press service of the Ministry of Justice notes. “The publication simplifies the proof of the fact that the counterparty or a third party knew or should have were aware of the revocation of the power of attorney.” Now the official publication is the Kommersant newspaper. “Instead of looking for all representatives under powers of attorney issued before him and notifying all counterparties, it is easier for a new director to post a message that such and such powers of attorney are no longer valid. After a month, he will be sure that no transactions can be concluded on behalf of the company without his knowledge,” confirms Maxim Rasputin, senior lawyer at the law firm “Egorov, Puginsky, Afanasiev and Partners.” He does not see any negative consequences of applying the new norm. According to Arthur Rokhlin, the only problem may be that finding yourself or the right company in the huge list of revoked powers of attorney will not be easy. He notes that the search would be much more convenient if the lists were posted on a website on the Internet rather than in a printed publication.
Anna Zanina; Anna Pushkarskaya, St. Petersburg
Notarized powers of attorney are now issued for quite long periods, and it may well be that during this time the representative or the principal himself changes his passport data, sometimes his last name (for example, in the case of marriage), or random errors in the passport data crept into the issued power of attorney itself. What then? Should the power of attorney be torn up and thrown away, or can it be used in accordance with the law?
According to the Civil Code, a power of attorney is a written authority issued by one person to another person or other persons for representation before third parties. According to Article 186 of the Civil Code, the only unconditional basis for recognizing a power of attorney as void is the absence of a date of issue. Even if the period for which the power of attorney is issued is not indicated, it is considered that the power of attorney is issued for a period of 1 year (except for powers of attorney for representing interests abroad, which are valid until the principal himself revokes them). Consequently, passport data does not belong to the mandatory details of the power of attorney, which is confirmed by judicial practice (for example, the decision of the Seventh Arbitration Court of Appeal dated July 30, 2008 N 07AP-3982/08, the decision of the Twelfth Arbitration Court of Appeal dated 06/09/2017 N 12AP- 5128/17, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 16, 2009 N 750/09).
The main thing is that the parties to the power of attorney can be identified, and for this it is enough to correctly indicate the last name, first name, patronymic, gender, date and place of birth of the principal and attorney. If all these data coincide, but the passport data was indicated with an error or changed, then this does not necessarily make the power of attorney void or invalid. It will then be necessary to assess whether the data in the power of attorney allows the parties to be identified.
According to the Passport Regulations, the passport contains information about previously issued basic documents identifying the identity of a citizen of the Russian Federation on the territory of Russia. The marks make it possible to identify the citizen to whom a power of attorney was issued under the previous passport. To confirm that a citizen with a different surname than that indicated in the power of attorney is an attorney, it is enough to present a marriage certificate or a change of name issued by the registry office.
In general, Article 188 of the Civil Code contains a closed list of grounds for termination of a power of attorney, among which are:
1) expiration of the power of attorney;
2) cancellation of the power of attorney by the person who issued it, or by one of the persons who issued the power of attorney jointly, while the cancellation of the power of attorney is made in the same form in which the power of attorney was issued, or in notarial form;
3) refusal of authority by the person to whom the power of attorney was issued;
4) termination of the legal entity on whose behalf or to which the power of attorney was issued, including as a result of its reorganization in the form of division, merger or merger with another legal entity;
5) death of the citizen who issued the power of attorney, recognition of him as incompetent, partially capable or missing;
6) death of a citizen to whom a power of attorney was issued, recognition of him as incompetent, partially capable or missing;
7) bankruptcy of the principal or representative, as a result of which the corresponding person loses the right to independently issue powers of attorney.
As you can see, it does not contain a change of passport or change of passport data. Thus, changes in passport data or even mistakes made in passport data do not make the power of attorney void, which is confirmed in the courts.
Let us also recall the basic rules regarding the issuance of powers of attorney under Russian law. The power of attorney must necessarily indicate the date of its issue, full name, gender, date and place of birth of the principal and representative.
A power of attorney is subject to mandatory notarization only in cases where this is expressly provided by law. What are these cases?
- to carry out transactions that require a notarial form (for example, a rental agreement or housing lease for a period of more than a year);
- to submit applications for state registration of rights or transactions, as well as for the disposal of those registered in state registers (for registration of rights and for applications for cadastral registration of real estate);
— trust;
— irrevocable power of attorney;
- in cases provided for by agreement of the parties.
Thus, if you want to issue a power of attorney to accompany a child across the territory of Russia or issue a power of attorney to drive a car, according to the laws of the Russian Federation, it is sufficient to do this in simple written form by writing the power of attorney by hand, indicating its date, authorized powers, representative and affixing a signature.
Not always, not everyone and not everywhere have the opportunity to contact a notary to certify a power of attorney. Therefore, the law also lists cases in which it is considered that the mandatory notarized form of power of attorney has been met:
— powers of attorney of persons staying in military medical institutions can be certified by the management of the institution;
— powers of attorney of military personnel can be certified by the chief or commander of a military unit;
— powers of attorney of persons serving a sentence of imprisonment may be certified by the head of the correctional institution;
— powers of attorney of legally capable persons living in a social service institution can be certified by the administration of such institution or the territorial social protection authority. That is, signing by an official will completely replace a visit to a notary under the specified circumstances.
And another special case of issuing powers of attorney is powers of attorney to receive salaries, pensions, benefits, remunerations or correspondence. According to the Civil Code, a power of attorney to receive wages and other payments related to labor relations, to receive remuneration for authors and inventors, pensions, benefits and scholarships, or to receive correspondence, with the exception of valuable correspondence, can be certified by the organization in which the principal works or studies, and the administration of the inpatient medical institution where he is being treated. Such a power of attorney is certified free of charge.
