Power of Attorney: How to Draft, Verify and Revoke It

Questions about powers of attorney usually arise in two situations: you need to hand your affairs to another person and it is unclear whether a notary will be required, or someone else's power of attorney has landed in your hands and you need to make sure it is genuine and still valid. A separate reason is a falling-out with the person you once trusted to represent your interests, when the document now has to be revoked urgently.

The article covers the types of powers of attorney, form requirements, the procedure for verifying a representative's authority in court and before state bodies, and the revocation procedure — from applying to a notary to the consequences for real estate transactions already completed.

What a power of attorney is and which types occur in practice

Under the Civil Code of the Republic of Kazakhstan, a power of attorney is a written authorisation by one person to another to perform certain actions on their behalf before third parties. The scope of authority is determined by the text of the document. Sub-delegation is permitted if the power of attorney itself allows it or if the representative is compelled to do so by force of circumstances to protect the principal's interests; a power of attorney issued by way of sub-delegation is certified by a notary (Art. 169 of the Civil Code of the Republic of Kazakhstan).

By scope of authority, three types are distinguished. A one-off power of attorney authorises a single transaction or action. A special one covers several similar actions, for example collecting correspondence or driving a vehicle: driving a car does not require a notarial form, while selling and re-registering it does. A power of attorney to represent interests in court and before state bodies is often drafted as a special one listing the authorities concerned. What is commonly called a general power of attorney is one for disposing of property and concluding transactions generally — the Civil Code of the Republic of Kazakhstan does not itself use the term 'general power of attorney'.

• one-off — for a single transaction or a single action;
• special — for several similar actions within a defined area;
• general — for disposing of property and concluding transactions generally;
• simple written form — for transactions between citizens and for receiving payments;
• notarial form — for managing property, transactions requiring notarial certification, and sub-delegation;
• the term and scope of authority are always determined by the principal.

When a power of attorney must be notarised and when a simple written form is enough

Notarial certification is mandatory for a power of attorney to manage property and to conclude transactions requiring a notarial form (Art. 167 of the Civil Code of the Republic of Kazakhstan): disposal of real estate and a share in it, annuity, life maintenance. Without a notary, such a power of attorney confers no authority, and the transaction may be declared invalid.

A notarial form is also required for filing documents for state registration of rights to real estate. The state corporation 'Government for Citizens', which maintains the Legal Cadastre, will accept an application from a representative only with a notarised power of attorney or a notarised copy of it. This applies to initial registration, transfer of rights and removal of encumbrances.

An organisation's requirement may be stricter than the law, so check it before arranging the document.

Power of attorney for obtaining documents without a notary: when this works

A simple written power of attorney in Kazakhstan does not require notarial certification if it concerns obtaining documents not connected with the disposal of property or the registration of rights. Under such a power of attorney, the representative may request salary certificates, bank account statements, duplicate contracts, copies of orders and personnel files, and correspondence addressed to the principal. In state bodies and in the State Corporation "Government for Citizens", a notarially certified power of attorney is, as a rule, required from a representative, so the simple written form should be agreed in advance with the organisation the representative will approach.

The form of the power of attorney must contain the mandatory details: the name and date of issue, the details of the principal and the representative, the scope of powers and the signature of the principal. If the power of attorney is issued on behalf of a legal entity, it is signed by the head and certified with a seal, if any. The validity period is stated in the text; if no period is stated, the power of attorney remains valid for one year. The organisation is entitled to keep a copy of such a document to confirm the representative's powers.

Power of attorney to a bank from an individual: what to consider before signing

A bank power of attorney from an individual is issued when the account holder cannot come to the branch: illness, travel, being busy. The authorised person has the right to withdraw cash, deposit money, make transfers, receive statements, manage the deposit, and, where the authority is expressly stated, close the account and collect the remaining balance. The scope of the mandate is determined by the text of the document: the broader the wording, the more operations are available to the representative.

The law and the bank's rules set different requirements. Under the Civil Code of the Republic of Kazakhstan, a power of attorney for the management of property and for transactions requiring a notarial form is notarised (Article 167 of the Civil Code of the Republic of Kazakhstan); banking operations are not such transactions. Many banks accept only a notarised document or certify it under their internal procedure — the signature of the account holder is verified by an authorised bank employee. Before signing, check with the branch which option the bank will accept.

General power of attorney from a legal entity: who is authorised and for what

A power of attorney on behalf of an LLP or another legal entity is issued in writing and signed by the director or another person authorised by the constituent documents. It states the full name of the principal, its BIN, the details of the authorised person, the scope of powers and the term. If the power of attorney is issued for transactions requiring a notarial form, it is also subject to notarial certification. A seal is affixed if its use is provided for by the constituent documents or by the power of attorney itself.

A general power of attorney from a legal entity gives an employee a broad range of powers: to represent the company's interests before state bodies, conclude and terminate contracts, sign acts, receive documents and tangible assets. The document is convenient for heads of branches and representative offices, but requires precise wording of the limits: the broader the list, the higher the risk of abuse. The powers can be limited to specific types of transactions or to an amount, and sub-delegation can be prohibited.

• The name and BIN of the principal, as well as the details of the authorised person
• The list of powers, indicating the bodies and types of documents
• The term of validity and the date of issue of the power of attorney
• The signature of the director and the imprint of the seal, if one is used
• A statement of the right to or prohibition of sub-delegation
• A note on notarial certification, where it is required

A power of attorney operates exactly within the limits written in it: the wording "to represent interests" without specific actions at a bank or in court often turns out to be useless.

Power of attorney for representation in court: when a notary is not needed

Representation in court by power of attorney is governed by the Civil Procedure Code of the Republic of Kazakhstan. A power of attorney from an individual is certified by a notary or by an organisation at the place of work, study, residence, inpatient treatment or detention. A simple written form without such certification is not sufficient for the court: the representative's powers must be certified in one of the listed ways.

A power of attorney from a legal entity is signed by the director or another authorised person, with the seal attached (if there is one). The full name of the LLP, its BIN, the representative's details and the scope of powers are stated. Notarial certification is not needed unless otherwise established by law or the constituent documents.

• For an individual: identity document details, place of residence, signature.
• For a legal entity: name, BIN, position and signature of the director, seal (if any).
• Date of issue and term of validity (if no term is stated — one year).
• The list of the representative's general powers.
• Special reservations: signing the claim, withdrawing the claim, admitting the claim, settlement agreement, appeal, receiving the awarded amount.
• The right of sub-delegation (if required).

Representation in court without a power of attorney: who has such a right

Legal representation arises by operation of law, not by the will of a principal, so a separate document on powers is not drawn up. Representation in court without a power of attorney is based on a direct provision of the procedural law, and the court checks not the paper but the status of the participant itself. Parents act as legal representatives of minor children, guardians and trustees — of the interests of their wards.

A guardian protects the rights of a citizen recognised as legally incapable, a trustee participates in the affairs of a person with limited legal capacity and of minors from the age of fourteen. The director of a legal entity acts on behalf of the organisation by virtue of their position, which follows from the constituent documents and registration data.

• parents — in respect of minor children, upon presentation of an identity document and a birth certificate
• adoptive parents — to the extent of parental rights, confirmed by the relevant certificate
• guardians — in cases involving citizens declared incapable, on the basis of an act appointing guardianship
• curators — in cases involving persons with limited legal capacity and minors from the age of fourteen
• the head of a legal entity — by virtue of office, as follows from the constituent documents and registration details
• other persons expressly named in the procedural law — upon confirmation of their status by an official document

A representative acting under a power of attorney in court and before state bodies: how to verify their authority

The check begins with the term: a power of attorney is valid until the date specified in it, and a power of attorney that does not state the date of issue is invalid (Article 168 of the Civil Code of the Republic of Kazakhstan). A certified signature of the principal confirms their intention, so it matters who certified it and how. Form also matters for the court: an uncertified copy is not equivalent to the original.

Next, the list of powers is examined: general representation before state bodies does not confer the right to dispose of the subject matter of a dispute. Waiver of a claim, its acknowledgement, amendment of claims, a settlement agreement and referral of a dispute to arbitration must be expressly stipulated. Without these stipulations, the representative is not entitled to perform acts of disposal.

Refusal to recognise authority is possible where the term has expired, the signature has not been certified, special rights have not been stipulated, the representative's details do not match, or the power of attorney has been revoked.

Main steps of the check:

• Verify the term of validity and the date of issue
• Check the certification of the principal's signature
• Compare the scope of powers with the procedural acts
• Confirm the right to waive a claim, acknowledge it and sign a settlement agreement
• Make sure the power of attorney has not been revoked

How to revoke a power of attorney: grounds and procedure for cancellation

The principal may revoke a power of attorney at any time without the representative's consent and without grounds. Revocation is formalised by their written application, notarially certified if the power of attorney was notarial. Under the Civil Code of the Republic of Kazakhstan, a power of attorney also terminates upon expiry of its term, refusal by the representative, termination of a legal entity, death of the principal or the representative, and recognition of either of them as incapable, with limited legal capacity or missing (Article 170 of the Civil Code of the Republic of Kazakhstan).

To cancel a notarial power of attorney, the principal submits an application for revocation to a notary, and the notary registers the revocation in the Unified Notarial Information System (UNIS). A general power of attorney is revoked in the same way, regardless of the scope of powers. The principal notifies the representative and the known third parties towards whom the power of attorney operated.

• Submit an application for revocation of the power of attorney to a notary, if it was notarially certified.
• Notify the representative by any means that allows confirmation of receipt of the notice.
• Send notices to the known third parties towards whom the power of attorney operated.
• Demand the return of the original power of attorney from the representative.
• Keep evidence of the notification in case of a dispute over the validity of transactions.

Cancelling a power of attorney at a notary: step-by-step procedure

Revocation of a power of attorney is a unilateral transaction by the principal; the attorney's consent is not required. The principal submits an application to a notary stating their details, the date and the reference details of the document being revoked. It may be certified by the notary who certified the power of attorney or by any other notary. From the moment of certification, the power of attorney ceases to have effect, and information on the revocation is entered into the Unified Notarial Information System.

When the main power of attorney is terminated, a power of attorney issued by way of sub-delegation also loses effect — it does not need to be revoked separately (Article 170 of the Civil Code of the Republic of Kazakhstan). When a general power of attorney is revoked, the application lists all the powers being terminated. The applicant is issued a document confirming certification of the revocation.

• Prepare an application to revoke the power of attorney, stating the reference details of the document and the principal's details.
• Apply to the notary who certified the power of attorney, or to any other notary.
• Have the application certified and obtain the confirming document on the revocation.
• Check that the revocation has been registered by the notary in the Unified Notarial Information System.
• Send written notice to the attorney and to known counterparties, with confirmation of receipt.
• Keep copies of the application, the certification endorsement and proof of notification.

Revocation of a general power of attorney for real estate: what to do about the register and transactions

Revocation of a general power of attorney for real estate is a unilateral transaction: the principal may revoke it at any time by notifying the representative. But notifying the attorney is not enough: until the revocation is registered by a notary, third parties see the power of attorney as still in force. The key task is to complete the revocation before a notary as quickly as possible, so that information about it enters the unified notarial system.

The notary who certified the power of attorney enters information on the revocation into the unified notarial information system. From that moment, any notary can see that the power of attorney has been terminated and is no longer entitled to certify a transaction under it. If a transaction is registered after the revocation, it is challenged in court: it is proved that the acquirer knew or ought to have known of the revocation at the time of conclusion.

• Submit an application to a notary to revoke the power of attorney — the notary enters a record in the register.
• Keep a copy of the application and confirmation that the information on the revocation has been entered.
• Order a certificate of registered rights (encumbrances) on the property and check whether any documents have been submitted for registration under the power of attorney.
• Send written notice to the attorney and to interested parties.
• Check whether any transactions were concluded in the period between the revocation and the entry in the register.
• If necessary, challenge the registered transaction in court, referring to the termination of powers.

Revoking a power of attorney does not automatically cancel a right that has already been registered — each transaction is assessed separately.