Power of Attorney Signed by a Grandson for a Trembling Principal
Private notary Aibek in Osh receives a request to certify a power of attorney. A 78-year-old woman, Asel, wants to authorize her grandson to sell her apartment for 3,200,000 som, receive the money, and register the transfer. Asel has a pronounced hand tremor and cannot sign her name. She speaks Kyrgyz, while the draft is in Russian. Her passport spelling of the surname differs by one letter from the title deed. The grandson answers most questions, saying his grandmother is tired and has a hospital appointment. Asel's daughter arrives and objects, claiming Asel has dementia, but produces no court decision. The grandson asks the notary to 'just stamp it' and offers to sign for her. No interpreter is present, and the office assistant has already prepared the draft. The power of attorney includes authority to sell without a minimum price and to collect cash.
1. May the grandson simply sign the power of attorney on Asel's behalf? What lawful options exist if she truly cannot sign because of her tremor?
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No. A power of attorney is a unilateral transaction that must express the principal's own will. The grandson cannot sign as 'attorney' for the very document that appoints him, because that would create his own authority and would not prove Asel's consent.
If Asel cannot sign because of a physical defect, the Civil Code allows a hand-substitute to sign at her request in the notary's presence, with the reason for the substituted signature stated in the document. The notary must first verify her identity, hear her request directly, explain the legal consequences, and confirm that she understands the scope of the authority, including the unlimited sale price and cash collection. Because the grandson is the beneficiary, using him as hand-substitute creates a serious conflict; the notary should prefer an independent person or refuse if free will cannot be established. The notary should also consider narrowing the power of attorney to a minimum price and bank payment, but only at Asel's direction.
2. How should the notary handle the language difference and the surname discrepancy?
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The notary must ensure that Asel understands the Russian draft. A qualified interpreter must translate the document and the notary's explanations into Kyrgyz, and the interpreter should sign the document or an annex confirming the translation. The notary should not rely on the grandson as interpreter because he has a direct interest.
The surname discrepancy must be resolved before certification. The notary should require a documentary chain linking the passport name to the title deed, such as a birth certificate, marriage certificate, or name-change document. If the discrepancy cannot be explained, the notary should refuse or postpone the act. Accepting the title deed without verification risks a later challenge and a disciplinary complaint. The notary should also record Asel's answers to simple questions in the file to show that she was heard directly.
3. What is the effect if the daughter later produces a court decision declaring Asel incapacitated, dated before the notarial act?
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If a court decision declaring Asel incapacitated was already in force before the power of attorney was certified, the transaction is void. An incapacitated person cannot make a power of attorney, and the notary should have refused had the decision been known. The notary must not certify an act for a person under guardianship.
If the decision is dated after the act, it does not by itself prove incapacity at the time of certification, but it is strong evidence requiring investigation. The notary should preserve the file, including identity checks, interpreter confirmation, and notes on direct questioning. The notary should not 'fix' the document retroactively. The proper response to a complaint is to provide the record to the Chamber of Notaries or the Ministry of Justice and let the disciplinary or court process assess capacity at the relevant time.