By: Rafael Alvarado
In our professional practice, powers of attorney granted abroad are frequently brought to our attention, and we must bear in mind that as Notary Publics we have to state that the legal representation exercised through said power of attorney is sufficient according to the law and in our opinion for the act or contract that will be granted before us (article 29 numeral 5 of the Notarial Code).
In accordance with article 29 of the Judicial Branch Law, the powers of attorney granted abroad, to be exercised in Guatemala, must be granted in accordance with the external formalities of the place where the power of attorney is granted, but in terms of its object and content, the power of attorney is governed by the laws of Guatemala (article 1700 of the Civil Code). In addition, the power of attorney must be apostilled, protocolized before a Notary Public in Guatemala and registered in the Registry of Powers of the Supreme Court of Justice.
However, if the power of attorney is granted in a country that is part of 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.
Until now, we understand that the following countries are part of the aforementioned Convention: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Republic Dominican, Uruguay and Venezuela.
Therefore, if we receive a power of attorney that has been granted in one of these countries, we must verify that the requirements established in the aforementioned Convention have been met in granting it.
The most relevant requirements are the following:
- The formalities and solemnities related 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 in which 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, said law will 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 in which the power of attorney is granted, the special solemnity that is required under the law of the State in which it is to be exercised is unknown, it will suffice to comply with the provisions of Article 7 of the Convention (which is further detailed ahead). (article 3)
- The publicity requirements 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 official who authenticates them must certify or attest, if he has the power to do so, on the following (article 6):
a. The identity of the grantor, as well as the declaration of the same about the nationality, age, domicile and marital status of him;
b. The right that the grantor may have to confer power of attorney on behalf of another natural person or
c. The legal existence of the moral or legal person in whose name the power of attorney is granted;
d. The representation of the moral or legal person, as well as the right that the grantor has to confer the power of attorney.
- If there is no official authorized to certify or vouch for the points indicated in article 6 in the state where the power of attorney is granted, the following formalities must be observed (article 7):
a. The power of attorney will contain a sworn statement or assertion by the grantor to tell the truth about the provisions of letter a) of article 6;
b. Certified copies or other evidence regarding the points indicated in letters b), c) and d) of the same article will be added to the power of attorney;
c. The grantor’s signature must be authenticated;
d. The other requirements established by the granting law.
- Powers of attorney must be authenticated when required by the law of the place where they are exercised. (Article 8) Guatemala adhered to the Convention Suppressing the Requirement of Legalization of Foreign Public Documents (The Hague Convention on the Apostille) in 2016, in accordance with Decree number 01-2016 of the Congress of the Republic of Guatemala, dated February 15, 2016, so as of that date, and in case the document comes from a country that is part of this Convention, this requirement would be fulfilled through the Apostille.
- Powers of attorney granted in a different language will be translated into the official language of the State in which they are exercised. (article 9)
- It is not necessary for the effectiveness of the power of attorney that the agent expresses acceptance of it in said act. This will result from the exercise of it. (article 11)
It is very important to verify compliance with all of the above, to ensure the validity of the power of attorney granted abroad, and that as a Notary we can state that the legal representation exercised through said power of attorney is sufficient according to the law and in our opinion for the act or contract that will be granted before us.