‎Power of Attorney in Brazil

1) GENERAL STANDARDS

The Power of Attorney drawn up in a Brazilian Consular Office is the mandate by which someone ("granted") receives from others ("grantor") powers to, in his name, perform acts or manage interests in the Brazilian territory. Any lawful act may be the subject of a mandate, with the exception of the will, personal testimony and adoption.

Powers of attorney by public instrument are those drawn up in the Brazilian Consular Requests Proxy Book or Notary's Office, in Brazil. Powers of attorney by private instrument, made by the interested party, must have the signature of the grantor recognized, so that they may take effect before third parties. Under Brazilian law, there are powers of attorney that are only valid and will produce legal effects if they are public, such as for marriage (art. 1542 of the Civil Code), mortgage or purchase and sale of real estate, motor vehicles and, for the most part, powers of attorney referring to the transfer of assets and rights. It is recommended that the interested party check in each case whether or not the public power of attorney is required by the body / institution before which the power of attorney will be used.

2) POWER OF ATTORNEY BY PUBLIC INSTRUMENT (also known as "Public Power of Attorney")

The power of attorney by public instrument will be drawn up in the Consular Office's Proxy Book. The Post will be able to draw proxies for Brazilian and foreign citizens with valid National Registry of Foreigners (RNE) documents, over 18 years of age or emancipated, in the enjoyment of their civil rights.

Citizens who are between 16 and 18 years of age, illiterate and those who, for some reason, cannot sign their name, can only give power of attorney by public instrument. The relatively incapacitated will sign the respective term together with their legal assistant. The term will be signed by a representative at your request (Brazilian or foreign)

when the grantor is illiterate or cannot sign.

It is recommended (although not mandatory) that the power of attorney be made for a specified period

Procedures for foreigners who do not have an RNE

Foreigners who do not have the RNE may issue a public power of attorney in two ways:

(a) public power of attorney:

1. The document must be drawn up before a local notary public;

2. Legalized at the Consular Office or handled by a competent foreign authority, if the power of attorney has been issued in a country that is part of the Hague Apostille Convention;

3. Translated in Brazil (by a sworn public translator); and

4. Transcribed in a Registry of Titles and Documents in Brazil;

(b) private power of attorney: in countries where there is no legal provision for the drawing up of power of attorney by public instrument, a private power of attorney may be produced, in which the signature of the applicants must be recognized for authenticity by a local notary. In such cases, the Consular Authority may be asked for a declaration confirming the impossibility of powers of attorney by public instrument being drawn up based on the law of the country. In addition, in order for it to have the effect of a public instrument, the same procedures relating to the public power of attorney must be adopted (legalization or apostille, translation and transcription)

A) REQUIRED DOCUMENTATION:

The documents required for the drawing up of a public power of attorney are:

- power of attorney form duly completed, legibly and without abbreviations, and signed by the grantor (s). The "powers" field should contain a clear and concise description of the powers conferred. The interested party may use the models provided by the Registry, by a lawyer or by the Post;

- if the grantor is a Brazilian citizen: document

Brazilian official with photo (passport or identity card) and, for powers of attorney that involve financial or patrimonial issues, CPF number (presentation of the CPF card is optional);

- if the grantor is a foreign citizen: valid National Registry of Foreigners (RNE) card and, for powers of attorney that involve financial or property issues, CPF number (card presentation is optional);

- if the grantor is a Brazilian legal entity,

in addition to the documents indicated above: CNPJ of the company,

simplified certificate from the Board of Trade (valid for 30 days), as well as a copy of the company's social contract, stating the quality of the partner.

If the grantor's name has changed, he must provide the original and a copy of the supporting document:

- in the case of marriage in Brazil, marriage certificate;

- in the case of a marriage entered into or registered with a Brazilian diplomatic mission or consular office, a consular certificate;

- in the case of marriage abroad, registration of marriage with the consular office;

- in the case of legal separation or divorce in Brazil,

marriage certificate with the corresponding annotations;

- in the case of divorce carried out abroad, a marriage certificate with the corresponding annotations (which must be carried out after the foreign divorce judgment has been ratified by the Superior Court of Justice);

- in the event of a name change other than for reasons of marriage, separation or divorce, documentary evidence of the respective annotation, by court order, made in Brazil at a Civil Registry Office in which the birth certificate of the interested party has been drawn up (The).

B) PROCEDURE:

Each Post must clarify the procedure adopted for drawing up public powers of attorney.

C) PAYMENT

Each Post must specify the values ​​of the corresponding consular fees in local currency, as well as the ways of making the said payment.

D) GRANTING HEALTH OF THE GRANTOR

In exceptional cases, in which the grantor is unable to move and the grantor's precarious health status is verified by means of a medical report, the Post will evaluate the possibility of appointing a consular officer to attend his residence or the hospital, so that he can attend. public power of attorney is drawn up, unless there is absolute unavailability of personnel or means of transport, as well as risks to the security of the server.

3) PROXY BY PRIVATE INSTRUMENT (also known as "Private Proxy")

In cases where a public power of attorney is not required, the power of attorney by private instrument can be made by:

- Brazilian;

- a Brazilian who wishes to make a power of attorney together with a foreign spouse who does not have a valid RNE card; and

- a foreigner who does not have a valid RNE card.

The interested party (grantor) must write the private power of attorney, which must contain the civil qualification data of the grantor (s) and the grantor (s), as well as the powers granted to the attorney-in-fact.

Thus, Brazilian and foreign grantors with valid RNE will be able to recognize their signature directly with the Brazilian Consular Office, without having to go through the local public notary in advance.

Foreign grantors without a valid RNE must appear before the local public notary for the recognition of their signatures and, later, legalization of the document at the Brazilian Consular Office, so that it may have legal effects in Brazil.

In Brazil, the power of attorney by private instrument may, if necessary, be registered with the Registry of Titles and Documents. In addition, if it is not written in Portuguese, it must be translated, in Brazil, by a sworn public translator.

4) REVOCATION OF PUBLIC ATTORNEY

The power of attorney can be revoked in one of the following alternative ways:

A) if drawn up at a Consular Office:

A.1) (if the grantor and the grantor are abroad) both must attend the Consular Office and request the drawing up of a "Public Deed of Revocation of Power of Attorney", to be signed by both. The Consular Authority will make the corresponding registration, in the margin of the Proxy Book in which the original power of attorney was revoked, which was revoked;

A.2) (if it is not possible for the grantee to appear) the grantee must appear at the Consular Office and request the drawing up of a "Public Deed of Revocation of Power of Attorney", to be signed by him.

A.3) (if the grantor is unable to attend) the grantor will request the competent judicial authority of the grantor's place of residence that both the grantor and the Brazilian Consular Office where the mandate was drawn up, be notified of the desire to revoke it . Upon receipt of the notification, the Consular Authority will make the appropriate registration in the original power of attorney;

B) if drawn up in a Notary Public in Brazil:

B.1) (if the grantor and the grantor are abroad) both will attend the Consular Office:

the same procedure as in item A.1 is adopted, and the term of the "Public Deed of Revocation of Power of Attorney" must be signed by both. In this case, extrajudicial notification will not be necessary, since the grantee is already aware of the end of the term.

B.2) (if it is not possible for the grantee to appear) the grantee must appear at the Consular Office and present an original copy of the power of attorney to be revoked, or a photocopy transmitted directly by the Registry, and request the drawing up of a "Public Deed Revocation of Power of Attorney ".

The grantor shall, by legal means, promote the grantor's notification of the existence of the revocation, in order for it to be legally effective. Accordingly, the interested party should be instructed to contact the Registry of Titles and Documents in Brazil in order to proceed with the extrajudicial notification of the grantor regarding the extinction of the mandate. Alternatively, the grantor may use the judicial process, and must appoint a lawyer to request the notification of the judge from the place of residence of the grantor.

B.3) (if it is not possible for the grantee to appear) the grantee may appoint a proxy in Brazil to represent him in the act of revocation. So the prosecutor

attend the Registry, sign the revocation term and provide notification of the recipient.

B.4) (if it is not possible for the grantee to appear)

the grantor will be able to use the judicial route, having to constitute lawyer to request to the judge of the place of

residence of the grantee that both the grantee and the Registry Office where the power of attorney was drawn up are notified of the revocation.

5) TERMINATION OF MANDATE

Resignation is the act by which the grantee / agent expressly declares that he no longer wants to be a proxy for a given power of attorney. In such cases, the interested party must request the drawing up of a "Public Deed of Waiver of Power of Attorney".

6) SUB-ESTABLISHMENT OF PROXY

Substitution is the transfer, by the trustee (granted from the original power of attorney), of the powers granted to him in the mandate (by the grantor of the original power of attorney), in part or in whole, to someone else, in order for him to replace him (granted from the replacement) ). The substitution can be done with or without reserve of equal powers to the agent who transfers the mandate that has been granted to him.

Thus, the substitution is still a power of attorney, having a similar form. The data of the grantor of the substitution will be the data of the grantor of the original power of attorney, whose powers are being substituted. The original power of attorney must be attached to the substitution term.

The person interested in substituting the power of attorney given to him must present the original copy of the original power of attorney, which should not contain the veto on the substitution.

According to art. 655 of the Civil Code, even when a mandate is granted by public instrument, it can be replaced by a private instrument. Thus, the interested party may choose to substitute for a private instrument and carry out the procedure in accordance with the previous items.

7) 2nd WAY OF POWER OF ATTORNEY

The first copy of the power of attorney (called the "power of attorney transfer") will be delivered to the grantor, upon the drawing up of the act. As it is a public document, any citizen may request the issuance of one or more certificates of that power of attorney (Law No. 12,527 / 2011, upon payment of the corresponding fees. Certificates (second copies) will be issued based on the original copy and any changes they have undergone.

If you need to prepare a power of attorney, don’t hesitate to contact us.