Any power-of-attorney granted and formalized before a notary public is valid.
Of course! How could it not be? If it has the notary’s seal and signature. Moreover, the document clearly reflects both the corporate name of the company granting the powers-of-attorney and the name of the attorney-in-fact. Both, as they appear in the current bylaws of the company and in the official identification, respectively.
However, the previous statements are not always true.
The granting of powers-of-attorney must follow very specific formalities in Mexican law. Otherwise, the powers-of-attorney contained in the document might be insufficient for certain purposes for which those are granted. In the worst-case scenario, the power-of-attoney could be invalid.
The latter case was examined by a federal court1 which concluded that the public deed containing the power-of-attorney to verify the identity of the attorney-in-fact of a commercial company, designated as the government defendant in a constitutional lawsuit (amparo), must have the authority granted to them transcribed into the deed.
What was the court’s reasoning for concluding the above?
The court argued that indeed the amparo law2 stipulates that when individuals or entities have been named as government defendants in a constitutional trial (amparo) they may appear in court or file appeals, either by themselves (in the case of individuals) or through their representatives (in the case of legal entities).
However, when they do so through their legal representatives, their powers-of-attorney must contain the transcription of the authority granted in the corresponding deed.
In this particular case, the general attorney-in-fact of a commercial company appeared with certain meeting minutes that only contained the notary’s public affirmation that the attorney-in-fact had the authority to represent the business entity. But the meeting minutes did not contain the transcription of the authority granted to the attorney-in -fact by the entity.
Official certification by a Notary public does not include the authority to recognize the capacity of a representative, the court pointed out.
What can we conclude from this case?
When we use any power-of-attorney to carry out procedures with banks, federal, state, or municipal authorities, and of course to file a lawsuit or appeal writ before a judge or judicial or administrative tribunal, it is essential to ensure that it meets all legal requirements.
The formalization of the power-of-attorney before a notary public is an essential formal requirement if the grantor is a business entity, but that is not the only one.
The requirements contemplated in Article 10 of the General Business Company Law3, as well as those in the corresponding Civil Code of the federal entity where the power-of-attorney is granted4, will be our compass to determine whether the granted power-of-attorney will be useful or not for the intended purposes.5
[1] Fourth Collegiate Administrative Court of the Second Circuit.
[2] Article 9, last paragraph.
[3] One of them was pointed out by the aforementioned collegiate court.
[4] In some cases, also in the General Negotiable Instruments and Credit Operations Law.
[5] Please click on the following link to review the court’s decision. https://sjfsemanal.scjn.gob.mx/detalle/tesis/2029059
