FORMATION OF POWER OF ATTORNEY IN POLAND FOR PERFORMING ACTIONS IN UKRAINE

Prepared by the Rule of Law Institute Foundation at the request of the Danish Refugee Council

August 10, 2023

General information

Issuing a power of attorney is a unilateral legal act that provides for the authorization of a certain authorized person (attorney or representative) to act on behalf of the person who issued it (the principal). Issuing a power of attorney makes it possible to replace the principal when performing the actions specified in the power of attorney. However, the power of attorney must clearly define the legal actions that the trustee can take, and in addition, those actions must be legal and enforceable.

Issuing a power of attorney is extremely important for citizens of Ukraine living in Poland, as situations often arise when they need to perform certain actions on the territory of Ukraine, and they do not have the opportunity to go there. In connection with the ongoing war, a practical solution to this problem is to issue a power of attorney, which will allow them to settle various matters in their homeland without the need for personal presence.

Citizens of Ukraine living on the territory of the Republic of Poland (RP) can use two methods of issuing a power of attorney: 

• in the diplomatic institution of Ukraine in Poland;
• at the notary.

Power of attorney issued at a diplomatic mission

The first and simplest option is a power of attorney in a diplomatic institution. Currently, citizens of Ukraine living in Poland can draw up a power of attorney and officially certify their signatures on such a document in the following institutions:

• Embassy of Ukraine in Warsaw;
• General consulates of Ukraine in Krakow, Lublin and Wroclaw;
• Consulate of Ukraine in Gdansk. 

The power of attorney, which is certified by a diplomatic institution, must be drawn up in Ukrainian in advance. The certificate itself is also issued in this language and, thus, there is no need for additional translations in order to use the power of attorney on the territory of Ukraine. Please note that the power of attorney must be entered in the Unified Register of Powers of Attorney administered by the Ministry of Justice of Ukraine. In connection with this, it is necessary to add to the power of attorney a statement on the registration of the power of attorney and a duplicate of the power of attorney in the Unified Register of Powers of Attorney. Also, in order to use the power of attorney, the authorized person must first register it with any notary in Ukraine. Only after registration, the authorized person can begin to exercise the powers granted to him by the principal.

Visit registration

It is important to keep in mind that submission of documents for identification to a diplomatic institution is possible only after prior registration in the electronic system for consular actions. You can register with the Consular Department of the Embassy in Warsaw and the Consulate General of Ukraine in Lublin via the website: https://registration.mfa.gov.ua/qmaticwebbooking/#/; whereas, registration with the Consulates General of Ukraine in Krakow and Wroclaw, as well as with the Consulate in Gdańsk, can be done through the website: https://online.mfa.gov.ua/application. Unfortunately, due to the high level of interest, places available through e-registration fill up quite quickly, which can be a problem if a proxy is needed urgently. If the system does not allow you to choose the date of the visit, it means that all free places are currently occupied. However, free dates may appear later, so you should keep an eye on the sites where you can reserve a place.

Procedure and payment for a power of attorney

Requirements for a power of attorney in a consular institution: 

• The first step is to register on one of the above sites, depending on the diplomatic institution.
• Before submitting the application, it is necessary to prepare and have with you a draft power of attorney. The requirements for the draft form depend on the institution - some require sending the draft power of attorney in an edited version to an email address and having a paper version with you (for example, in Lublin). Others, in turn, ask to have a paper version and an electronic version on a medium (for example, in Warsaw). On the web page https://poland.mfa.gov.ua/kontakti posted links to the websites of individual institutions, where you can familiarize yourself with the requirements of one or another institution.
• In addition, it is necessary to fill out applications for a power of attorney and enter it in the Unified Register of Powers of Attorney (in duplicate). Application samples are available at the link: https://poland.mfa.gov.ua/konsulski-pitannya/1987-permanent/posvidchennya-dovirenosti, where other requirements are also specified.
• The following documents are required for a power of attorney certificate:

- documents confirming the right of ownership (in the case of a power of attorney for the principal's property),

- documents of the principal: foreign passport and two copies of the first page of the passport; a document confirming legal stay in Poland and two copies of this document; two copies of the passport of a citizen of Ukraine (copies of all pages with markings); two copies of the certificate with the registration number of the taxpayer's account card (identification number),

- documents of the authorized person: two copies of the passport of a citizen of Ukraine (copies of all pages with marks); two copies of the certificate on the assignment of the registration number of the taxpayer's account card (identification number),

- a document confirming the family relationship with the trustee, if such a relationship exists.

• A consular fee must be paid. For a certificate of power of attorney of a non-property nature (representation of interests, etc.) – 125 zlotys. The consular fee for power of attorneys of a property nature (sale of real estate, etc.) for children, spouse, parents (on the condition of presentation of documents confirming family relations) is 125 zlotys; for other persons - 250 zlotys. At the same time, it should be remembered that the power of attorney must be entered in the Unified Register of Powers of Attorney. Therefore, an application to enter the power of attorney in the Unified Register of Powers of Attorney and a duplicate power of attorney worth 83 zlotys are attached to each power of attorney issued. The consular fee can be paid by bank transfer or at the relevant post office or bank.

Importantly!

Details (current fee amount) and payment methods (current bank account number) should be checked before making the payment on the website of the relevant diplomatic institution. Procedural requirements can also change, so it's best to check the relevant diplomatic mission's website for up-to-date information before taking action.

Samples of powers of attorney

Samples of the most popular powers of attorney can be found on the website of the Consulate General of Ukraine in Wroclaw via the link: https://wroclaw.mfa.gov.ua/dovirenist (at the bottom of the page). The power of attorney draft can also be prepared independently, it is important that the content clearly defines the parties and actions authorized by the authorized person.

Important information

Due to the fact that martial law is in effect on the territory of Ukraine, the rules regarding the terms of validity of powers of attorney, especially those of a property nature, for example, for the sale of an apartment or a plot of land, are often changed. In accordance with current legislation, a general power of attorney issued by a principal to dispose of immovable property:

• valid for 2 months, if the power of attorney is certified by a Ukrainian diplomatic institution, for example, a consulate abroad;
• valid for 1 month, if certified by a foreign notary (it is possible to extend the validity of such a power of attorney for 7 days).

In connection with the war, Ukrainian legislation is changing quite dynamically, therefore, before issuing a power of attorney, you should check the relevance of the above information. In addition to the above-mentioned procedures, it is worth noting that diplomatic missions can also officially certify the authenticity of the signature on applications that relate, in particular, to consent to registration or removal from the registered place of residence, acceptance or refusal of inheritance, consent to the departure of a child abroad. The procedure for obtaining them is somewhat different and can be found on the website: https://poland.mfa.gov.ua/konsulski-pitannya/1987-permanent 

Notarial power of attorney

The second option for a power of attorney certificate is to contact a notary. In a situation where we decide to certify a power of attorney at a notary in Poland, we must bear in mind that additional measures will have to be taken in order for the power of attorney to have legal force on the territory of Ukraine. And although the content, form or name of the document drawn up by a notary (depending on his practice) may differ, as in the case of a power of attorney certified at a diplomatic mission, the most important thing is clearly defined parties and actions that authorize the authorized person.

The procedure for obtaining a power of attorney from a notary public

First of all, it is worth noting that the act of certifying a signature on a power of attorney or drawing up a power of attorney in the form of a notarial deed can be done at any notary operating within the framework of a notary office. The nearest office (notary) can be found using the website: https://znajdznotariusza.rejestry-notarialne.pl/ 

According to Polish legislation, a notary in Poland acts in the official language, which is Polish. Therefore, any notes made by the notary will be in Polish. When certifying a signature made under a document drawn up in a foreign language, the notary will note this fact, noting that he cannot verify the legality of such a statement. In this case, the state bodies of Ukraine may refuse to accept such documents. The way out of this problem is to perform the act at a notary in the presence of a sworn translator, who will agree with the notary on the text in Ukrainian, which will give the notary an opportunity to certify it. For such an action, it is necessary to make an appointment in advance both with a notary and to agree with a sworn translator (a list of them can be found at the link): https://arch-bip.ms.gov.pl/pl/rejestry-i-ewidencje/tlumacze-przysiegli/lista-tlumaczy-przysieglych/search.html). 

A power of attorney drawn up in Polish cannot be used on the territory of Ukraine. It must be translated, and a safer option would be to make a notarized translation already in Ukraine.

Types of documents drawn up by a notary public

A power of attorney drawn up with the participation of a notary can take one of two forms:

• a power of attorney with a notarized signature, when a person draws up a power of attorney on his own, and the notary only certifies his signature. This form is used in the case of general powers of attorney and in situations where the law considers such a form sufficient, for example, in the case of simple actions (when it is not about the sale/purchase of property or the management of such property), such as representing the principal when receiving correspondence, giving consent to border crossing by a child, providing access to a car, etc;
• power of attorney in the form of a notarial act, when the notary drafts or corrects the text of the power of attorney and thus certifies both the text itself and the principal's signature. A power of attorney in the form of a notarial deed is necessary, among other things, for any agreement on the sale of real estate, but it can be used in other situations that do not require this form of document. Such a document is written entirely in Polish. 

A power of attorney made in the form of a notarial deed, although it is a more expensive option, is at the same time safer. Drawing up powers of attorney in the form of a notarial deed, even if it is an action that does not require this form, has a number of advantages: it guarantees that the document is drawn up correctly and in accordance with current legislation; guarantees that the power of attorney was actually granted by the person indicated as the principal, as the public notary establishes the identity of the citizens, conducts the conversation and makes sure that this person is fully capable of making decisions and consciously expresses his will; and, which is very important, excludes the risk of the power of attorney being challenged by state authorities, state institutions or individuals.

Payments

Returning to the issue of payment, it should be noted that regardless of the notary, notary fees will be almost the same, as notary fees are regulated by the relevant legislation. The size of the notary fee is regulated by the Decree of the Minister of Justice of June 28, 2004 on the maximum rates of the notary fee.

Information contained in the power of attorney

There is no legally approved standard or standard power of attorney text. Of course, it is possible to find samples of power of attorney on the Internet that are suitable for this situation, and based on them, draw up your own power of attorney.

The place and date of its execution (or signing), surname, first name, patronymic (or full name of the legal entity), place of residence (or location of the legal entity) of the principal and the authorized person and, if necessary, their position are indicated in the power of attorney. The power of attorney issued to lawyers must indicate their status and membership in the bar association.

It should be noted that the current Ukrainian legislation does not require the passport data of the principal and authorized person to be specified in the power of attorney. In practice, these data are most often included in the power of attorney. Given that the power of attorney will be used on the territory of Ukraine, before issuing the power of attorney, it is worth coordinating its content with the subject/organization or notary who will continue to work with the power of attorney, and it is best to get a sample with the information that should be contained in the power of attorney.

Unfortunately, so-called "general" powers of attorney can lead to unpleasant consequences, because there are cases when the authorized person abuses the powers granted to him, or the institution for which such a power of attorney was issued refuses to perform the requested actions due to the lack of a clear "general" power of attorney in the content instructions, which specific powers are in question. Therefore, you should approach the power of attorney and its content wisely.

Additional actions: document certification, apostille, translation

Apostille is a confirmation of the official character of a domestic document, necessary for use abroad. It confirms the signature and the nature of the actions of the person who signed the document, as well as the identity of the seal on the document. Apostille in Poland has the form of a sticker, which contains the handwritten signature of an official, an official seal and holographic protection.

The question of the necessity of affixing an apostille for the use of a power of attorney in Ukraine seems debatable. There are a number of countries with which Ukraine has agreements that exempt it from the obligation to apostill official documents. Most often, this happens within the framework of agreements concluded between two or more countries. Currently, there is an agreement between the Republic of Poland and Ukraine on legal assistance and legal relations in civil and criminal matters, signed in Kyiv on May 24, 1993. The relevant articles of this Agreement provide that documents drawn up or certified by the relevant institution of one of the Contracting Parties (for example, of Poland), certified by the seal and signature of the relevant person, have the force of a document in the territory of another Contracting Party (for example, Ukraine), without the need for any other certification. Documents recognized as official in the territory of one Contracting Party are considered the same in the territory of another Contracting Party.

Unfortunately, depending on the body (institution) in which the power of attorney will be used, as well as the volume of cases and actions covered by the power of attorney, there may be a requirement to put an apostille on the document. It is best, if possible, to contact the institution where the power of attorney will be submitted with a request for information on whether an apostille will be required.

In a situation where it turns out that a Ukrainian body or institution requires an apostille, it is necessary to first obtain a notarization of the document in the local district court. Before taking steps to affix an apostille, it is necessary to certify the notary's signature and seal - such certification can be done by a competent district court. A stamp duty of 26 zlotys is charged for certification of one document in court. Before submitting an application, you should check the website of the relevant court to see if the amount of the fee has changed. A sample application can be found on the website of the relevant court or obtained from the court premises. In turn, an application for certification of a document can be submitted in the reception department of the relevant district court or by mail.

Additional information can be obtained from the customer service department or on the website of the relevant district court. After receiving a certificate from the district court, you can apply for an apostille on a notarial document to the Ministry of Foreign Affairs of Poland. The fee for affixing an apostille is PLN 60 (the actual amount of the fee should be specified on the day of submitting the application for affixing an apostille) for each document to be certified. The issue can be resolved at the Ministry of Foreign Affairs in person, through a third party, or by mail. Detailed information on how to obtain an apostille (including registration of the period of visits, filling out the application, payment of the fee, the procedure for issuing the apostille) can be found on the website: https://www.gov.pl/web/dyplomacja/apostille#osobi%C5%9Bcie. 

Final remarks

Therefore, if it is necessary to issue a power of attorney in Poland, which will then be used on the territory of Ukraine, it is best to start the procedure by checking the possibility of certifying such a document in a diplomatic institution. Given the possible long waiting period for an appointment at the consulate, it is worth considering the option with a notary, which can be a faster solution. When it comes to drawing up a power of attorney in the presence of a Polish notary, several important points should be taken into account:

• if the principal does not speak the language well enough, the notary may require the presence of an interpreter,
• it is safer to make a power of attorney in the form of a notarial deed, especially if it concerns, for example, the sale of real estate, which according to Polish law requires exactly this form,
• if you plan to use a power of attorney on the territory of Ukraine, it will be necessary to translate the document, it is best to make a translation on the territory of Ukraine (the so-called notarized translation - a Ukrainian translator translates, and the notary confirms the competence of this translator) to ensure its validity and comprehensibility for the relevant authorities on the territory of Ukraine.

Adherence to these aspects will ensure efficient and successful resolution of power of attorney issues in both countries.