Power of Attorney and the COVID 19 Crisis – Be Prepared!

For Your Health & Property Security

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For Your Health & Property Security

By Agustin Galindo, Attorney at Law*

The COVID 19 Crisis has been a challenge and an adaptation process for everyone – for foreign residents who are still in Mexico and for those who returned to the USA or Canada but who own property in Mexico.

If you become sick or incapacitated, or if you own property in Mexico and you are currently not in the country, a Power of Attorney (POA) will allow your attorney or someone else to act on your behalf.

Power of Attorney (POA) – What it Does

A Power of Attorney (POA) is a legal document that gives an attorney, or someone else, the authority to act on behalf of individuals or corporations that for some reason cannot personally perform a legal act, including health and hospitalization issues, travel agendas or restrictions, real estate matters, etc.

Again, a POA is an important health precaution, and if you own property, it will help us to buy or sell and finalize deals without you being in the country.

The Process of Obtaining a POA

Drafting a Power of Attorney and guiding a person adequately is not a simple matter. The Power of Attorney must fulfill certain requirements and language, and the process is different for Canadians and Americans. There are different international agreements that affect the execution of legal documents from Canada and from the USA. You have two options:

  • The Power of Attorney is granted before the nearest Mexican Consulate in your home country with the assistance of an English-Spanish translator.

Your Power of Attorney must be prepared and then translated into Spanish by a certified court translator (seal obtained), and then it is granted before the Mexican Consulate.

In theory, this is the simplest process because the Power of Attorney is granted in Spanish and notarized through the Mexican Consul, and therefore, it is valid in Mexico without further requirements.

  • The Power of Attorney is granted before a Canadian or US Notary Public

Canadians: Your Power of Attorney must first be notarized by a Canadian Notary Public. Then, you need to get it translated into Spanish by a certified court translator (seal obtained). It then must be presented before the Mexican Consulate in Canada to be “legalized” to be valid in Mexico.

Americans: You must prepare your Power of Attorney and have it notarized by a U.S. Notary Public. Then, you must go to the office of the Secretary of State, in the state where the Power of Attorney was notarized, to obtain an Apostille seal on the document. Then you need to get it translated into Spanish by a certified court translator (seal obtained).

In both cases, the notarization is basically to certify that the grantor or person signing the Power of Attorney has enough capacity to sign it.

Special Considerations for Property Owners

In addition to the above, when you acquire property in Mexico, certain language must be included to comply with the requirements of the Mexican Constitution, the Foreign Investment Law, and the Immigration Law.

Foreigners are restricted from directly owning property in coastal zones (50 kilometers inland) and in the borders (100 kilometers from the border). Property in restricted zones can only be acquired through a bank trust, or by forming a Mexican corporation and the corporation (a Mexican citizen) owns the property.

It is a common error in preparing Powers of Attorney for owners of property in restricted zones to refer to the parties as “buyers or sellers,” when legally, they are the beneficiary of trust rights.

Specific language must be included in the case of granting a Power of Attorney for disposition; and for the assignment (transfer) of trust rights; or instructing a Trustee to transfer property and canceling a trust, including appointing secondary beneficiaries (heirs).

Seek Legal Assistance

Powers of Attorney are for your protection in case of a crisis or unforeseen situation. Just be sure that you get legal assistance to assist you in doing it properly. Please contact me so I can assist you. In addition to legal services, we also provide certified (with a seal) Spanish-language translation for your documents.

*About the Author: Agustin Galindo is a Mexican Attorney at Law with a master’s degree in International and Comparative Law from Southern Methodist University in Texas, and holds a tax degree from ITAM in Mexico City.

References:

There are three international conventions applicable to foreigners: 1) Protocol on Uniformity of Powers of Attorney which are to be utilized abroad  (also known as The Washington Protocol); 2) Inter-American Convention on the Legal Regime of Powers of Attorney to be used Abroad; and 3) The Hague Convention abolishing the Requirement of Legalization for Foreign Public Documents. Canada is not a part of these treaties which is why Powers of Attorney granted before a Canadian notary public must be legalized before a Mexican Consulate. The US is not part of the Inter-American Convention on the Legal Regime of Powers of Attorney to be used abroad. Mexico is part of all these treaties. Sources: www.oas.org. and www.hcch.net

Related Article:

Go to our Expat Section for more information about living in Mexico.