Notarial Deed and Power of Attorney in Poland: Key Differences and Formalization Procedure

What is a Notarial Deed in Poland?

A notarial deed in Poland is an official document prepared by a notary public, confirming certain legal facts or agreements. It has special evidentiary value and can serve as a basis for enforcement, for example, for a mortgage or real estate sale. A notarial deed expresses the will of the parties, recorded by the notary in accordance with legal requirements. This can be a power of attorney, sales contract, a gift agreement, the establishment of a mortgage, a prenuptial agreement, etc.

The procedure for certifying a notarial deed requires the personal presence of the parties or their authorized representatives. The notary verifies their identity, legal capacity, and legal standing, and explains the content and legal consequences of the agreement. The document is drawn up in Polish, and if one of the parties does not speak Polish, the notary engages an interpreter. Importantly, a notarial deed can include provisions for immediate enforcement, significantly speeding up the process of realizing the rights and obligations of the parties.

The legal framework governing the activities of notaries and the procedure for certifying notarial deeds in Poland is primarily contained in the Act on Notaries (Ustawa Prawo o notariacie). This act defines the rights, obligations, and responsibilities of notaries, as well as the requirements for the form and content of notarial documents.

What is a Power of Attorney in Poland?

A power of attorney in Poland is a document by which one person (the principal) authorizes another person (the agent) to perform certain legal actions on their behalf. A power of attorney can be general (covering all affairs of the principal), special (for performing a specific action), or special (for a certain range of matters). It is a unilateral legal act, meaning that the principal's will is sufficient for its validity.

The form of a power of attorney depends on the actions the agent is authorized to perform. If these are actions that require a notarial form (e.g., selling real estate), then the power of attorney to perform such actions must also be in the form of a notarial deed. In other cases, a power of attorney can be drawn up in simple written form. A notary can certify the signature on a power of attorney, giving it greater legal force, especially if it is intended for use abroad.

The Civil Code of Poland (Kodeks cywilny) contains provisions regulating representation and the procedure for issuing powers of attorney. Article 103 of the Civil Code states that actions taken on behalf of another person without proper authorization are invalid unless the person on whose behalf they were taken subsequently approves them.

Key Differences Between a Notarial Deed and a Power of Attorney

The main difference lies in the purpose and legal nature of these documents. A notarial deed is a bilateral agreement or an official confirmation of a fact that creates rights and obligations directly between the parties to the agreement. It is the primary document that records the will of the parties.

A power of attorney, on the other hand, is a unilateral document that grants authority to one person to act on behalf of another. It does not create rights and obligations between the principal and the agent in the same way as a notarial deed between the parties to an agreement. A power of attorney is an instrument of representation.

Another important difference is the scope of application. A notarial deed is most often used for formalizing significant legal actions, such as real estate transactions, company formation, or prenuptial agreements. A power of attorney can be used for a wide range of actions, from obtaining documents to managing property, and is often an auxiliary tool for performing actions that require a notarial form.

How to Formalize a Notarial Deed and a Power of Attorney in Poland?

Formalizing a Notarial Deed:

1. Contact any notary office in Poland.

2. Provide the necessary documents: passport, documents confirming ownership (if it's a real estate transaction), company incorporation documents, etc.

3. The notary will prepare a draft deed, which you will carefully read and discuss.

4. Sign the deed in the presence of the notary.

5. Pay the notary fee and taxes.

Formalizing a Power of Attorney:

1. Determine the specific actions you wish to delegate to the agent.

2. Contact a notary (if a notarial form is required) or prepare the document in writing.

3. Clearly indicate the details of the principal and the agent, the scope of authority, and the validity period (if any) in the power of attorney.

4. If the power of attorney is to be notarized, the notary will verify your identity and explain the consequences.

5. Sign the power of attorney.

It is important to remember that for documents drawn up in Poland to be used abroad, they may require translation into the relevant language and subsequent certification. This could be notarization of the translation, an apostille, or consular legalization, depending on the destination country.

For example, for countries that are parties to the Hague Convention of 1961, which abolishes the requirement of legalization for foreign public documents, an apostille is sufficient. For other countries, full consular legalization may be required, which includes certification of the document by the Ministry of Foreign Affairs and then by the consulate of the destination country.

If you need to perform legal actions in Ukraine, foreign documents issued in Poland will also require appropriate legalization by translation and notarization of the translation in Ukraine.

Particular attention should be paid to the accuracy of the translation, as any inaccuracies can lead to the invalidity of the document or misunderstandings. ObriSoft offers a full range of services for translating and legalizing documents for use both in Ukraine and abroad, ensuring compliance with all requirements.