Things to Consider When Making a Power of Attorney in Thailand

A power of attorney (PoA) is a legal document that gives a person the power and authority to act on behalf of another party/ person, known as the Principal. The person given the authority is often referred to as the Attorney-in-Fact. The Principal may give their Attorney-in-Fact wide or narrow powers to make decisions and take actions on their behalf in a variety of situations such as filing a document with the Government or signing a contract on their behalf etc. Authorizing a person under a PoA is an important legal decision requiring careful forethought to ensure that it reflects the Principal’s wishes and protects their best interests. This article shall consider and discuss several key issues which a Principal should consider before they make a PoA in Thailand granting power/ authority to another person or persons.

Legal Capacity

The Principal and Attorney-in-Fact should both have the legal capacity to enter into the PoA. Under Thai law the key legal requirements include, they should be aged over 20 and not of unsound mind. If the Principal is less than 20 years of age then they will need to obtain the consent of their legal representative (parent/ legal guardian) before entering into the PoA. It should also be noted that if the Principal is adjudged incompetent by the Thai Courts then any juristic act done by such person (such as granting a PoA) is voidable.

Choosing a Suitable Attorney-in-Fact/ Grantee

Before giving a PoA to someone, a Principal should carefully choose a trustworthy and responsible person to act in this capacity as the Attorney-in-Fact. The writer recommends that such person should be someone that they trust implicitly and who is willing to take on the responsibilities detailed in the PoA. In certain circumstances it may also be sensible to appoint more than one Attorney-in-Fact under the document in case one of them becomes unwilling or unable to act in this role for whatever reason.

Stamp Duty

In Thailand, in order to have a valid legally enforceable PoA, it is necessary for such document to have stamp duty affixed to it; this ranges between 10-30 baht. Stamp duty is the responsibility of the Principal. The different rates of stamp duty in Thailand are as follows:

A PoA authorizing one or more persons to perform an act once only – 10 Baht;

A PoA authorizing one or more persons to jointly perform acts more than once – 20 Baht;

A PoA authorizing several persons to perform acts more than once separately; the instrument will be charged on the basis of each individual who is authorized – 30 Baht.

Notarization and Legalization

Certain types of PoA in Thailand also require the document to be notarized by a notary public and legalized by an Embassy. One example of this is a PoA from an overseas registered company appointing a person to be a branch office manager or a representative office manager, this is because to register a person as a branch/ rep. office manager the PoA must at least be notarized, however, if such document is to be used to support a visa extension then the Immigration Bureau normally require such PoA to be legalized by the Royal Thai Embassy in the country where the PoA is made.

Discussing Matters with the Attorney-in-Fact

It is advisable that before signing a PoA, the Principal should have a conversation with their proposed Attorney-in-Fact to explain the reason why they have given them certain powers and authority under the PoA and to let them know what they want them to do with such power and to also check to see if their Attorney-in-Fact is ready, willing and able to act in this capacity.

Revocation and Termination of the PoA

Arguably one of the most important issues to consider when having a PoA prepared is the revocation or termination of the document. In some cases it may be prudent to have wording which provides that the PoA shall automatically expire/ terminate upon a certain date, however, in other cases it may be safer to have it terminate upon a certain event happening such as a person leaving the employment of a company or specific conditions being met. In any case, it is often a good idea for the Principal to give themselves an easy and straightforward method by which to revoke or terminate the PoA in case such action is necessary.

Using a PoA with the Thai Government

It is worth noting that certain Thai Government departments/ agencies/ authorities have their own PoA templates which they insist people use for certain types of transactions such as a Principal appointing an Attorney-in-Fact to represent them at the Land Dept for the registration of the sale and transfer of real property.

If a foreigner is to sign such a document (which are normally in Thai) then the writer recommends that they obtain a certified translation of the document before signing so that they can understand the content of the PoA as otherwise it may prove to be problematic in the future. In addition to this, it would also be prudent for the Principal to keep a copy of the PoA for their future reference in case a dispute later arises between them and the Attorney-in-Fact.

Scope of Authority under the PoA

A Principal should carefully consider the scope of authority that they wish to give their Attorney-in-Fact under the PoA because if it is too narrow then it may not be effective for them to carry out the task the Principal wants them to do. However, if the scope of authority is too broad then it could be risky to the Principal as the Attorney-in-Fact could use such power to do acts which the Principal may not want them to do. In any case, the scope of authority should conform with the intention of the Principal.

Identifying the Parties

When making a PoA, the Principal should be careful to accurately identify themselves and their Attorney-in-Fact so that it is clear who the respective parties are. The Principal should be sure to use their full legal name, their ID card/Passport number and address in the document; the same principle applies to the Attorney-in-Fact with respect to identifying them. In relation to PoA’s made in Thai language, if the Principal/Attorney-in-Fact is not Thai and does not have a Thai name then they should ensure that the Thai spelling which appears in the PoA uses Thai spelling for their name as appears on their other official documents such as their work permit or house registration etc. It is important to be consistent with Thai spelling of a name to avoid confusion and problems arising later on.

Writer: Ryan Crowley – Director and Foreign Services Manager

Dharmniti Law Office Co., Ltd.

2/2 Bhakdi Building 2nd Floor, Witthayu Road, Lumphini, Pathumwan, Bangkok 10330

Tel: (66) 2680 9777

Fax: (66) 2680 9711

Email: ryan@dlo.co.th or info@dlo.co.th