Proxies
What is it?
Power of attorney is the instrument by which a person appoints another person of his trust as his representative (proxy), to act on his behalf in a certain situation in which he is unable to attend.
In the representation for the practice of complex and solemn acts, such as, for example, sale and donation of real estate, representation in marriage or in divorce and inventory deeds, the law requires special powers and power of attorney in the public form, done in a notary public office.
The representation for the practice of acts that law does not require public deed can be done by private power of attorney, with a notarized signature.
Attention: powers of attorney for social security purposes (INSS) are made free of charge in the notary offices of the State of São Paulo.
What are the documents required to set up a power of attorney in a notary public office?
Individuals: those interested in appointing a proxy must present their original personal documents (ID, CPF and marriage certificate).
The prosecutor’s personal data (name, ID, CPF, marital status, profession and address) must be informed, and it is recommended that copies of the documents be presented for conference.
Legal Entity: the interested party must present the original or certified copy of the social contract and its amendments, minutes of appointment of the board, CNPJ, in addition to the original ID and CPF of the representative who will sign the document. In proxies related to real estate it is recommended to present the property certificate.
Attention: since August 14, 2016, the legalization of documents has been replaced by Apostille, foreseen in the Hague Convention, initially made by the notaries of the capitals, according to a procedure defined by the National Council of Justice (CNJ).
What is proxy substitution? What are its effects?
Proxy substitution is the instrument by which the attorney-in-fact transfers the powers received to another person, who will replace him in the practice of acts on behalf of the original grantor.
The proxy substitution can be total or partial, with or without reserve of powers.
The proxy substitution follows the same form required for the practice of the act. It means that if the law determines that the act is solemn and must be performed by a public instrument, the substitution of the public power of attorney must be done in a public form. The effects are in article 667 of the Civil Code:
Art.667. The agent is obliged to apply all his usual diligence in the execution of the mandate, and to indemnify any damage caused by his own fault or that of the person to whom, without authorization, he delegates powers that he should exercise personally.
§ 1° If, despite the prohibition of the principal, the trustee is substituted in the execution of the mandate, he will answer to his constituent for the losses occurred under the management of the substitute, although arising from a fortuitous case, except proving that the case would have survived, although there had been no substitution.
§ 2° If there are powers to underscore, the damage cause by undersigned will only be imputable to the agent, if he has acted with guilt in his choice or in the instructions given to him.
§ 3° If the prohibition on substituting is included in the power of attorney, the acts performed by the deputy do not oblige the principal, unless expressly ratified, which will retroact to the date of the act.
§ 4° If the power of attorney is omitted as regards the substitution, the prosecutor will be liable if the deputy proceeds blamelessly.
What is a proxy in its own right?
It is the power of attorney that has a special clause that allows the attorney to acquire the property for himself. For it to have full validity, it is important to stablish the sale price or state that the value has already been received, as well as the corresponding tax collection.
The price is fixed by law in all registries in this State. To check values, consult the notary public of your choice.
Source: www.cnbsp.org.br