This article will discuss what power of attorney is in relation to 1948 cases. Before we address what the power of attorney is, it is first necessary to briefly explain what a 1948 case is.
What is a 1948 case?
A 1948 case is how an individual seeks Italian citizenship by descent through an Italian-born female ancestor who had a child/ren born prior to January 1, 1948. It requires filing a case at court in Italy. In fact, Italian citizenship law prior to the Italian Constitution, which came into effect on January 1, 1948, denied women the right to pass citizenship on to their children. It was only with the advent of the Italian Constitution that women were granted the same right as men, and were permitted to have their Italian citizenship transferred to their children.
The implication of this is that any children born before that date, and consequently any descendant in a female antecedent’s direct line of descent, must apply to have their Italian citizenship recognized by filing a petition at court. This can be done thanks to a Supreme Court’s decision which held that denying women the right to transfer citizenship to their children was discriminatory.
The petition is filed at the regional court that has the jurisdiction in the municipality where the Italian ancestor was born. For more information about 1948 cases click here.
What is power of attorney?
Broadly speaking, power of attorney gives authorization for an appointed attorney to represent or act on behalf of an individual in private affairs, business, or legal matters. In order to grant power of attorney, the would-be-client must complete and sign a legal document whereby an individual gives another person the right to make decisions on their behalf in relation to a specific matter.
In the context of 1948 cases, petitioners (clients) who reside abroad must give power of attorney to an attorney based in Italy, who is then able to represent him/her in citizenship proceedings. It is important to note that the authority given in power of attorney documents is always clearly outlined and defined, and powers specifically stated. This ensures that the attorney has the authority to act on behalf of the client only in the citizenship claim before the indicated court, and not in any other type of case.
What information does the power of attorney include?
The power of attorney document serves as official authorization to represent the client in and before the competent court. It includes the personal details of the principal and the name and last name of appointed attorney, as well as the name of the bar association to which the attorney is registered. Furthermore, it includes the court where the case will be filed and the type of proceeding which will be initiated by the attorney (claim to obtain Italian citizenship). Finally, it includes provisions that grant the appointed attorney “duly elected” status in matters relating to the POA, as well as the authority to receive official communications on behalf of the client.
How to execute a power of attorney
In order for the power of attorney issued abroad to be permitted for use in Italian court proceedings, certain requirements and formalities must be met. For individuals residing abroad the power of attorney document must be signed before a U.S. public notary. The identity and personal information of the signer (client), such as forename, surname, place and date of birth must be verified before the document can be finalized. In addition, the client (grantor of power of attorney) must be physically present in order to sign the power of attorney document, and will be required to sign the document in the presence of the public notary, who will then certify the signature, affix its stamp and date the document.
It is also relevant to note that in order to file the case in an Italian court, any documents/vital records that are in a foreign language, must have a sworn translation. Alternatively, in some cases there is the option that the translation can be done by the notary, if they declare that they are proficient in the language it appears in, or the notary can sign a bilingual power of attorney.
Furthermore, the Hague Convention of October 5, 1961, introduced the need to have an Apostille affixed to foreign documents/vital records. Its purpose is to verify the authenticity of the public notary’s or public official’s signature and, in turn, it is a verification of the signature from the foreign country.
It is useful to state that if the client is temporarily in Italy, or resides in Italy, the notary and apostille may not be required, and the client is able to sign the power of attorney document in the presence of the attorney at the relevant law firm. In this instance, the attorney would essentially perform the function of the public notary by authenticating the signature, i.e., verifying the identity of the person who signed the power of attorney.
In order to evidence to the court that the power of attorney was signed in Italy, and in the presence of the attorney of record, the following may be required:
- The stamp on the passport that shows entry into Italy. More specifically, this is necessary if the client came to Italy for a short period, as a tourist, for example;
- The certificate of residency or the residency permit (permesso di soggiorno), in the event that the client has moved to Italy.
On the basis that the client who is making the claim does not have to be physically present in Italy, once the power of attorney document has been signed the attorney can be the designated person who will receive all communication and information in respect of proceedings on behalf of the client. All communication and correspondence will be made to the appointed attorney from the cancelleria (the office of the court’s clerk that provides assistance to the judge throughout proceedings) and is done so via PEC, which is a certified and secure e-mail. The clerk’s office performs all administrative duties, such as documenting judicial events, registration and custody of acts, and publication of judgments in respect of the proceedings, and is also responsible for communicating any directives or orders that judge has made to the appointed attorney.
How is a court proceeding filed?
Filing the case involves paying the filing fee payment. The cost is €518.00, plus the revenue stamp duty fee which is €27.00. The relevant supporting documents/vital records are then submitted to the office of the court’s clerk, which include the power of attorney document.
A unique case number (R.G) is then given and sent to the president of the court. The next phase is to assign a judge to the case. In instances whereby the court is divided into several divisions, the president of the court will allocate the case to the relevant division, and appoint a judge.
As mentioned, the POA grants permission for the attorney to receive all communication and correspondence on the client’s behalf in case matters, and the attorney will be the point of reference throughout proceedings.
In terms of how a hearing is held, it may be in person, or held remotely, or in written proceedings. The format a hearing takes will depend on variables such as the complexity of the case and the judge’s instructions.
For more information on how a case is filed at court, see our related article here.
How long does a court proceeding take?
In some cases, the judge will grant or deny a citizenship claim in the first hearing. However, it is more likely that the judge will take between 1 and 6 weeks after the hearing for the judge to grant or deny your claim. In total, the court proceedings and outcome tend to take between 3 and 9 months.
What happens next?
Once a claim has been formally recognized and granted by a judge, Italian citizenship status becomes official and a notification is then issued to the attorney of record. The final judgment and vital records will be registered with the municipality in Italy of the Italian-born ancestor.
For more information regarding the outcome of a successful 1948 case you can click here to read a related article.
This article has discussed power of attorney in relation to 1948 cases, and factors to consider when pursuing your Italian citizenship claim through court. If you would like to know more about our services and how we can assist you, please visit our homepage, or contact us directly and one of our friendly experts will be in touch to answer your queries.
