By: Rafael Alvarado
In our professional practice we are frequently confronted with powers of attorney granted abroad, and we must keep in mind that as Notaries we must certify that the legal representation exercised by means of such power of attorney is sufficient according to the law and in our judgment for the act or contract to be granted before our offices (article 29 numeral 5 of the Notary Code).
According to article 29 of the Judicial Branch Law, the mandates granted abroad, in order to be exercised in Guatemala, must be granted in accordance with the external formalities of the place where the mandate is granted, but as to its object and content, the mandate is governed by the laws of Guatemala (article 1700 of the Civil Code). In addition, the power of attorney must be apostilled, notarized before a Notary Public in Guatemala and registered in the Power of Attorney Registry of the General Archive of Protocols of the Judicial Branch.
Now, if the power of attorney is granted in a country that is a party to the Inter-American Convention on the Legal Regime of Powers of Attorney to be Used Abroad, the requirements established in said Convention must be observed.
Up to this moment, we understand that the following countries are part of the referred Convention: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Uruguay and Venezuela.
Therefore, if we receive a power of attorney that has been granted in any of these countries, we must verify that the requirements established in the referred Convention have been complied with.
The most relevant requirements are the following:
– The formalities and solemnities relating to the granting of powers of attorney, which are to be used abroad, shall be subject to the laws of the State where they are granted, unless the grantor prefers to be subject to the law of the State where they are to be exercised. In any case, if the law of the latter requires essential solemnities for the validity of the power of attorney, such law shall govern (as would be the requirement of Article 1687 of the Civil Code, which indicates that the power of attorney must be recorded in a public deed as an essential requirement for its existence). (Article 2).
When in the State where the power of attorney is granted the special solemnity required under the law of the State where it is to be exercised is unknown, it is sufficient to comply with the provisions of article 7 of the Convention (detailed below) (article 3). (article 3)
The requirements of publicity of the power of attorney are subject to the law of the State in which it is exercised (Article 4).
The effects and exercise of the power of attorney are subject to the law of the State where it is exercised. (article 5)
In all powers of attorney, the legalizing officer shall certify or attest, if so empowered, to the following (Article 6):
a. The identity of the grantor, as well as the grantor’s declaration of nationality, age, domicile and marital status;
b. The grantor’s right to grant power of attorney on behalf of another natural person or legal entity; b. The grantor’s right to grant power of attorney on behalf of another natural person or legal entity.
c. The legal existence of the moral or juridical person in whose name the power of attorney is granted;
d. The representation of the legal person or juridical entity, as well as the grantor’s right to grant the power of attorney.
If in the State where the power of attorney is granted there is no officer authorized to certify or attest the points indicated in article 6, the following formalities must be observed (article 7):
a. The power of attorney shall contain an affidavit or affirmation of the grantor to tell the truth about the provisions of Article 6(a);
b. Certified copies or other evidence with respect to the points indicated in letters b), c) and d) of the same article shall be added to the power of attorney;
c. The signature of the grantor shall be authenticated;
d. The other requirements established by the law of the grantor.
The powers of attorney must be legalized when so required by the law of the place of its exercise. (article 8) Guatemala adhered to the Convention Suppressing the Requirement of Legalization of Foreign Public Documents (Hague Apostille Convention) in 2016, according to Decree number 01-2016 of the Congress of the Republic of Guatemala, dated February 15, 2016, so from that date, and in case the document comes from a country that is a party to this Convention, this requirement would be fulfilled by means of the Apostille.
Powers of attorney granted in a different language shall be translated into the official language of the State where they are exercised (article 9).
It is not necessary for the effectiveness of the power of attorney that the attorney-in-fact expresses in such act his acceptance. This will result from its exercise (article 11).
It is very important to verify the fulfillment of all the above, to assure the validity of the power of attorney granted abroad, and that as a Notary Public we can state that the legal representation that is exercised through said power of attorney is sufficient according to the law and in our judgment for the act or contract that will be granted before our offices.