Posted on Wed 20th November 2013 11.38AM Notarial
The question is sometimes asked as to what a notary adds which a solicitor cannot. The answer to this is not straight forward. However the main reasons for using a notary public can be summarised as follows:
· The Notary will usually have experience of various jurisdictions and their differing, sometimes idiosyncratic, requirements, which the average solicitor is unlikely to have. Notaries spend most of their time dealing with various foreign jurisdictions and know what is needed. Getting a document sent abroad can be very expensive if it is done wrongly.
· Ensuring that the transaction evidenced by the document is properly executed, e.g. is a Power of Attorney executed correctly and in accordance with board resolution and Articles of a company? Does the grantor have capacity to execute the document?
· Independent impartial authentication and verification is often required by the receiving jurisdiction and most foreign countries will be familiar with the duties of a notary but not a solicitor
· International acknowledgement of the notarial act as something which confers increased authenticity on a document as compared to an un-notarised document
· Some consulates may simply refuse to legalise something which is not also notarised
· Even if legalised as required there is an increased risk of non-acceptance by the end user or someone else in the transaction, e.g. another party to a contract negotiation, as they will expect to see a notary being involved
· Arguably the range of public documents capable of being subject to a Hague Convention Apostille includes notarised documents but not those certified by other lawyers – this would be particularly the case with resolutions and powers, which are not public in their own right. I am not sure this has ever been argued in relation to solicitor’s certificates, for example, but this is arguably the correct reading of the convention. This means that for the Foreign Office to attach an apostille to a document certified by a solicitor may be against the international convention.