Executing a power of attorney for the signing of a French authentic instrument when living abroad is possible under certain conditions.
Since the abolition of the notarial powers in French Consulates and Embassies om January 1st 2019, many French nationals living abroad were obliged to return to France urgently to sign authentic instruments. Those who did not have this possibility found themselves in a deadlock. It is however possible to get around this difficulty.
Definition of authentic instruments under French law: examples
The definition of an authentic instrument is given by article 1369 of the French Civil Code. It is an act "(...) which was received, with the required formalities, by a public officer having powers and qualified to draw up a formal document. (…) ”
This instrument must be drafted by a Public officer such as the Notary in France. We more commonly speak of a notarial act/ document in France: marriage contracts, deed of donation, deed of sale, notoriety deed in an estate. This list is a non-comprehensive list of instruments.
1. Situation before January 1st 2019
Before that date, Consulate and Embassy services around the world had notarial functions, allowing them to deal with these authentic instruments. These services had already been abolished on January 1st, 2005 within the European Union and the European economic area as well as in Andorra, Switzerland, Monaco and the Vatican, apparently with no real negative impact. Unfortunately, the removal of these functions in the rest of the world is more problematic due to the distance.
1. Situation after January 1st, 2019
Since January 1st, 2019, the new wave of abolition has required the implementation of a solution to allow French nationals residing abroad, needing to sign an authentic instrument without having the possibility of flying to France, to do so.
The difficulty lies in the fact that French Notaries cannot practice outside French borders. However, French law requires that authentic instruments such as marriage contracts, declarations of law applicable to marriage, powers of attorney for deeds of sale, be prepared and signed by a French notary who can explain the content of the document and ensure that the client understands and is fully aware of his commitment. There is rarely the equivalent of a French notary abroad. In addition, the ministerial officer in the host country is required to speak French and master French law, in order to be able to fulfil the conditions set out above.
1. Solution implemented
For deeds, such as the signing of a former power of attorney to sell or acquire, only a certified signature is required. You just have to go to the consulate to have your signature certified. Only your identity will be checked.
For authentic instruments, it is necessary to sign a power of attorney giving your Notary in France the power to sign the act on your behalf. The proxy must therefore be received by a professional under French law, who can explain the content of the deed to you in the presence of a local Notary Public. The document signed by all will then have to be stamped with the Apostille.
This of course has a cost sometimes higher than the purchase of a return flight by plane to France, but the experience of recent months has proven that this solution is more and more popular with French nationals abroad.