Norial powers of attorney abroad
As a result of the internationalization of economic relations, the use of powers of attorney executed outside Spain is becoming increasingly widespread. This has led to a debate as to which requirements these documents need to meet in order to be accepted in legal transactions in Spain. The truth is that many questions have arisen in recent years regarding the validity in Spain of powers of attorney executed abroad that do not comply with the provisions established in Spanish legislation for these types of documents, with the argument that their failure to do so could jeopardize legal certainty, for example, by allowing a power of attorney executed abroad that did not comply with the legal requirements in Spain to be used to execute a deed of sale and purchase of a property, and that sale and purchase then being registered at the Property Registry.
In order to ensure the validity of the representation that is asserted in a foreign notarized power of attorney, it is advisable for the document to be certified by apostille (or authenticated using a legally accepted mechanism) and it should also contain the so-called “equivalence of functions” provision. Pursuant to this provision, a foreign notary must indicate in the power of attorney that (1) he has duly identified the individual appearing before him, that the individual in question has sufficient legal capacity to execute such power of attorney; (2) that, as notary, he performs functions equivalent to those of Spanish notaries and that he has therefore participated in drawing up the power of attorney; (3) that the effects of his attestation of the power of attorney are similar to the effects of a Spanish notary’s attestation of these types of documents in Spain, and (4) that the power of attorney complies with the legal requirements of the legislation of the country in which it has been executed, and that it does not need to be registered at any local register in order to be effective.
A power of attorney executed in this manner will consequently be formally valid pursuant to Spanish law and ought to be generally accepted in accordance with the rulings of the Directorate-General of Registries and the Notarial Profession (DGRN).
Finally, it should be borne in mind that in some countries, foreign notaries do not accept the inclusion of the equivalence provision in powers of attorney, arguing that it is contrary to their duties as notary in the relevant country. Consequently, in such cases, other alternatives need to be found, such as, for example, executing the power of attorney before the Spanish consulate in that territory.
Senior associate of the Malaga Corporate/Commercial Law Department