The Power of Attorney That Outlived Its Purpose
Notary Volha certified a broad power of attorney three years ago: Ivan authorised his brother Piotr to 'manage, sell, mortgage and otherwise dispose of' Ivan's country house and to 'receive all payments'. Ivan has since moved abroad and stopped answering calls. Piotr now appears with the original power of attorney and asks Volha to certify a sale of the house to Piotr's own company for 25,000 BYN, well below market. The power of attorney contains no expiry date and no prohibition on self-dealing. Piotr says Ivan is 'fine with it' and produces an email, unauthenticated, purportedly from Ivan. Volha's assistant recalls that Ivan once said he wanted the house kept for his children.
1. May Volha act on this power of attorney? Analyse the conflict of interest and the scope of authority.
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The notary must not certify the sale in these circumstances.
Self-dealing. Piotr is the attorney and the beneficial owner of the buyer. A general power to 'sell and dispose' does not, without express wording, authorise a sale to the attorney himself or to an entity he controls. Such a transaction is a conflict of interest and is voidable at the principal's instance. The notary should require a specific, separately granted authority for self-dealing, or the principal's personal participation.
Scope. The power of attorney is broad but not unlimited: 'manage and dispose' does not authorise a gift or a sale at a price so far below market as to amount to a disguised gift. The notary must check the price against the valuation and treat a gross undervalue as a signal.
Evidence of the principal's will. An unauthenticated email is not a valid substitute for the principal's consent. The notary should require direct confirmation from Ivan - a notarised consent, a fresh power of attorney, or a video/remote identification procedure if the law permits - and should not rely on the attorney's assurances.
Duration. A power of attorney without a term remains valid until revoked, but the notary should check whether it has been revoked; the principal's unavailability makes that check more important. The notary should ask the Chamber or the register whether a revocation has been recorded.
Conclusion: refuse unless Ivan personally confirms the sale, the price is justified, and the self-dealing is expressly authorised.
2. What should the notary do about the assistant's recollection and the suspicion that Ivan's interests are being undermined?
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The recollection is not proof, but it is a trigger for inquiry, not a basis for refusal by itself.
Record and verify. The notary should record in the file what was said, when, and by whom, and then seek independent verification: contact Ivan through the address in the file, ask for a notarised statement, and check the register for any revocation or guardianship entry. If Ivan cannot be reached, the notary should not infer his wishes from an email.
Refuse, do not accuse. The notary should refuse to certify, giving reasons tied to the conflict of interest and the absence of reliable consent. She should not accuse Piotr of fraud in the refusal; she should state the objective grounds.
Reporting. If the pattern - an absent principal, an undervalue sale to the attorney's own company, a suspicious email - suggests abuse, the notary should consider a report to the competent authority under anti-money-laundering and fraud-prevention duties, while observing confidentiality towards third parties.
Protective steps. The notary may note that Ivan's children could seek protective measures over the property if they have grounds. The notary's role is to preserve the file and refuse, not to litigate on Ivan's behalf.