The Mandarin-Speaking Donor, the Interpreting Son and the Missing Passport
A woman in her late seventies, a Mandarin speaker with limited English, attends a notary's office with her son. She wishes to execute a general power of attorney over her Irish bank accounts in favour of that son, for use before a Chinese bank and, she says, 'for everything'. The son translates throughout. Her only identification is a photocopy of her passport; she says the original is at home. The son mentions, in passing, that his mother 'gets a bit confused since the stroke' but that 'today is a good day'. The son is also the person who will receive the funds if the power is used. The notary does not speak Mandarin and has no interpreter booked.
1. Can the notary proceed using the son as interpreter?
Read the worked answer
No - not as the sole channel of communication with the donor.
Three problems coincide:
- Competence. The notary does not speak Mandarin and cannot himself test whether the donor understands the nature and effect of a general power of attorney, an instrument wide enough to empty her accounts or sell her home.
- Conflict of interest. The son is the proposed attorney and the person who would receive the funds. A translator with a direct financial interest cannot be treated as independent, and the notary cannot verify what actually passes between mother and son.
- Record. If the instrument is later challenged in China or Ireland, the file must show how understanding was achieved.
Proper course: adjourn and instruct an independent, competent interpreter - not the son and not any person who stands to gain. The whole instrument should be translated and read over to the donor; the interpreter should sign a declaration of competence and faithful translation; the notary should record the interpreter's identity, the language used, and confirm in his certificate that the document was read over and explained. If no such interpreter can be arranged, he should decline to act.
2. What must the notary do about identity, and can the son's assurance substitute for the original passport?
Read the worked answer
A photocopy is not identification, and the son's assurance is worth nothing evidentially.
Notaries in Ireland are designated persons for anti-money-laundering purposes under the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, as amended, and must apply customer due diligence before acting. That requires:
- the original government-issued photographic identity document, examined in person, with a copy retained;
- verification of address, and, in a case of this kind, some corroboration of the reason for the transaction and the source of funds;
- a risk-based approach: an elderly, potentially vulnerable donor granting a general power to a family member is a recognised higher-risk pattern, so enhanced measures and a reasoned file note are appropriate.
The notary should not act until the original passport is produced; the appointment can be rescheduled. When identity is established he should record the document type, number, expiry and issuing authority, and retain the record for the statutory period. If no original identity document can be produced at all, he should decline the instruction.
3. How should the notary deal with the remark about confusion after the stroke, and with the breadth of the power requested?
Read the worked answer
The stroke remark turns a routine matter into a judgement call that must be resolved before anything is signed.
- The notary is not a doctor, but he must be satisfied that the donor understands the instrument, its effect and its risks. A general power over all accounts is the widest authority available; she should be told, in her own language, that it could be used to transfer or sell assets, and asked to explain back what she wants.
- Safeguards: see her alone, without the son, at least for part of the meeting; ask open questions about her assets, her children and her intentions; ask why she wants the power and whether she understands it can be revoked; note her answers contemporaneously.
- If doubt persists, decline, or require a recent medical opinion directed to the notary's specific question, or insist that she receive independent legal advice.
- Question the scope. A specific power limited to identified accounts may meet her real need with far less risk than 'everything'. If capacity is genuinely in question, an enduring power of attorney under the Assisted Decision-Making (Capacity) Act 2015 may be the appropriate instrument, and the notary should say so.
- If he proceeds, the certificate should record the enquiries made and the interpreter's involvement; if he declines, he should give reasons promptly and in writing.