It is common for a person residing outside Peru to need to grant a power of attorney to a representative in this country. A power of attorney may be necessary, for example, to sell or purchase real estate, carry out procedures with public agencies, participate in legal proceedings, or represent a company.

Before granting a power of attorney, it is advisable to determine what formalities the document must meet in order to be valid in Peru and, when applicable, to be registered with the National Superintendency of Public Registries (SUNARP). The answer depends, among other factors, on the type of powers granted, the country in which the power of attorney is granted, and the formalities required by that country’s laws.

Generally speaking, there are two options: executing the power of attorney before a Peruvian consular official or having it formalized before a notary or foreign authority. Although both alternatives may be valid, their requirements and the procedures for using them in Peru differ.

1. Granting of Power of Attorney at a Peruvian Consulate

A person who is abroad may grant a power of attorney before a Peruvian consular officer, who performs notarial functions in accordance with Article 118 of the Consular Regulations of Peru, approved by Supreme Decree No. 032-2023-RE. Consequently, a power of attorney granted at the consulate is executed in accordance with the formalities of Peruvian law and is enforceable in Peru under the regime applicable to notarial instruments.

Article 131 of the Consular Regulations recognizes three types of consular powers of attorney: (i) a power of attorney by public deed; (ii) an unregistered power of attorney; and (iii) a power of attorney by letter with a legalized signature. This classification corresponds to that provided for powers of attorney granted before a notary in Article 117 of Legislative Decree No. 1049, the Legislative Decree on Notaries.

A power of attorney by public deed is governed by Articles 118 et seq. of the Legislative Decree on Notaries and is filed with the Registry of Public Deeds at the consular office. This is the appropriate form, among other cases, when granting authority to dispose of the principal’s property or encumber their assets, in accordance with Article 156 of the Civil Code. Therefore, if the intention is to sell or mortgage a property, this is the form that should be considered for execution before the Peruvian consulate.

An unregistered power of attorney, regulated by Article 119 of the Legislative Decree on Notaries, is governed by the provisions applicable to a power of attorney by public deed but does not need to be entered into the notarial protocol to be valid. For its part, a power of attorney by letter with a notarized signature is granted in a private document, in accordance with Article 120 of the same regulation. The appropriate form will depend on the nature of the mandate and the formalities required for the act to be performed by the agent.

A distinction must also be made between the formal type of power of attorney and the scope of the powers conferred. Pursuant to Article 155 of the Civil Code, a general power of attorney covers only acts of administration, while a special power of attorney covers only the acts for which it has been granted. Therefore, the terms “general” or “special” describe the scope of representation and do not constitute a fourth type of document.

Article 122 of the Legislative Decree on Notaries provides that the type of power of attorney to be used is determined based on the value of the matter at hand and that, when such value cannot be determined, the rules of general law apply. In any case, this rule must be read in conjunction with the specific requirements of the Civil Code: for example, Article 156 requires a public deed, under penalty of nullity, for a power of attorney intended to dispose of the principal’s property or encumber their assets.

Likewise, Article 132 of the Consular Regulations provides that, when powers of attorney—whether executed by public deed or outside the registry—cite legal provisions relating to acts of disposition or the granting of powers without specifying their content, the consular officer must transcribe them verbatim.

If the power of attorney is granted before a Peruvian consular officer, its registration with SUNARP is carried out through the corresponding consular report. Article 120 of the Consular Regulations establishes that consular offices maintain a Registry of Public Instruments and transmit or submit consular reports to SUNARP electronically. Reports submitted electronically and digitally signed by the consular official do not require additional legalization by the Ministry of Foreign Affairs and constitute sufficient title for their submission and registration. In exceptional cases, when physical reports are issued, they must be legalized by the Ministry.

This method generally offers greater predictability in the registration process and reduces the risk of objections related to the formalities of issuance, since the document is issued under Peruvian law. Furthermore, the electronic submission of the consular certificate simplifies its transmission to SUNARP, provided the consulate has the necessary system in place.

2. Granting of Powers of Attorney Before a Foreign Notary

It is also possible to grant a power of attorney before a notary or other competent authority in the country where the grantor is located. In this case, the form of the act and the instrument must be analyzed in accordance with Peruvian rules of private international law and the laws of the place where the power of attorney is granted.

Article 16 of the RIMP expressly regulates the registration of powers of attorney executed before Peruvian consular officials. Meanwhile, Article 23 states that the registration of the execution of a power of attorney and certain amendments is based on the notarial certificate of the public deed or the consular certificate. These provisions do not specifically establish a separate procedure for all types of documents executed before foreign notaries.

3. What laws govern the form of a power of attorney granted abroad?

When a person grants a power of attorney before a foreign notary, it should not be assumed that the document must necessarily comply with the same formalities required by Peruvian law. To determine whether it can be used and registered in Peru, it is necessary to identify which legislation governs its form and verify that it meets the requirements for recognition in our country.

In this regard, Article 11 of the General Regulations on Public Registries (RGRP) permits the registration of documents executed abroad, provided they contain acts or rights that are registrable under Peruvian law. This provision also requires that the documents be submitted in Spanish or accompanied by a translation and that they comply with the corresponding legalization formalities. To determine their validity, it refers to the rules of private international law contained in Book X of the Civil Code.

In particular, Article 2094 of the Civil Code provides that the form of legal acts and instruments is governed by the law of the place where they are executed or by the law governing the legal relationship that is the subject matter of the act. The same provision specifies that, when instruments are executed before Peruvian diplomatic or consular officials, the formalities required by Peruvian law must be observed.

For its part, Article 2049 of the Civil Code establishes a limit on the application of foreign law: it shall not apply when it is incompatible with Peruvian international public policy or public morals, in which case the provisions of domestic law shall apply.

Consequently, a power of attorney executed before a foreign notary should not be rejected solely because its documentary form differs from that provided for under Peruvian law. The key is to determine which law applies to its form and to verify that its recognition and effects are not incompatible with the Peruvian legal system.

4. Verification of the Content of Foreign Legislation

If the power of attorney is granted in accordance with the formalities of the country of origin, a practical question arises: How can SUNARP verify that the document meets the requirements established by that country’s laws?

Article 11 of the RGRP provides that the validity of acts and rights granted abroad is determined in accordance with the rules of private international law set forth in the Civil Code. In application of this provision, the Registry Court has established that, when it is necessary to ascertain the content of foreign legislation in order to assess a title, the interested party must provide documentation proving its existence and scope. This documentation may form part of the title submitted for registration.

This criterion was elaborated in Resolution No. 348-2009-SUNARP-TR-L, in which the Registry Court specified that the title may include not only the document containing the act for which registration is sought, but also documents intended to substantiate the applicable foreign legislation. However, such substantiation is not necessary when the registrar or the Registry Court itself is familiar with the content of that legislation.

This criterion was subsequently applied in Resolution No. 2205-2017-SUNARP-TR-L, which concerned a power of attorney executed before a Spanish notary. In that case, the Court examined the applicable legislation and verified that it permitted the execution of powers of attorney by means of a notarized public deed. After reviewing its content and confirming that the instrument had been executed in accordance with said regulations, the Court concluded that it was not appropriate to require additional documentation to substantiate the foreign legislation and ordered the registration of the power of attorney.

Therefore, before executing a power of attorney before a foreign notary, it is advisable to verify whether it will be necessary to provide SUNARP with evidence of the applicable laws of the country where the power of attorney was executed. If the registrar is unfamiliar with those laws, they may require documentation to verify compliance with the applicable formalities. Anticipating this issue can help avoid objections and delays in registration.

5. Is it mandatory for the power of attorney to sell a property to be recorded in a notarized deed?

Article 156 of the Civil Code provides that the power to dispose of the principal’s property or to encumber his or her assets must be set forth in a public deed, under penalty of nullity. However, when the power of attorney is granted abroad, this requirement must be analyzed in conjunction with Peruvian rules of private international law. Indeed, pursuant to Article 2094 of the Civil Code, the form of legal acts and instruments is governed by the law of the place where they are executed or by the law governing the legal relationship that is the subject matter of the act.

In this regard, it cannot be asserted that every power of attorney granted abroad to sell real property located in Peru must necessarily be set forth in a public deed executed in accordance with Peruvian formalities. Resolution No. 0543-2024-SUNARP-TR, in adopting the criteria of Resolution No. 277-96-ORLC/TR, states that the requirement of Article 156 of the Civil Code constitutes a rule of domestic public policy, but not necessarily one of international public policy. Therefore, this requirement does not automatically preclude the application of applicable foreign law.

Thus, for example, if the law of the country where the power of attorney is granted allows for the conferral of authority to sell real property through a private document with a signature certified by a notary—without requiring a public deed—that formality could be accepted in Peru, provided that such law is applicable and it is proven that the power of attorney was granted in compliance with its requirements. If the registrar or the Registry Court is unfamiliar with the relevant foreign regulations, they may require the interested party to provide documentation proving their existence and content, in accordance with the criteria established by the Registry Court regarding the verification of foreign legislation..

6. Apostille, legalization, and translation of powers of attorney granted abroad

Article 11 of the RGRP provides that documents issued abroad that are submitted for registration must be legalized in accordance with the relevant regulations and drafted in Spanish or accompanied by a translation.

To comply with this requirement, a distinction must be made between two procedures, depending on whether the country of origin is a party to the Hague Convention of October 5, 1961, which eliminates the requirement for legalization of foreign public documents.

If the power of attorney is executed in a country that is a party to the Convention, an apostille issued by the competent authority of that country must be obtained. Article 1 of the Convention includes among public documents notarial certifications incorporated into private documents, as may be the case with the certification of the grantor’s signature. Therefore, a power of attorney executed in a private document with a signature certified before a foreign notary may also be subject to an apostille.

If the issuing country is not a party to the Convention, the consular legalization procedure must be followed. Generally speaking, this involves the certification of signatures by the competent authorities of the country of origin, the intervention of the relevant Peruvian consular official, and the subsequent legalization of that official’s signature by the Peruvian Ministry of Foreign Affairs. This procedure is governed by the Regulations on Administrative Procedures for Legalization and Apostille, approved by Supreme Decree No. 005-2021-RE.

It is important to note that, pursuant to Article 5 of the Hague Convention, the apostille certifies the authenticity of the signature, the capacity in which the person signing the document acted, and, where applicable, the identity of the seal or stamp. It does not attest to the validity of the power of attorney’s content nor that it was granted in compliance with the formalities required by applicable foreign law. Therefore, the apostille does not replace a legal analysis of the power of attorney’s validity nor does it guarantee its registration with SUNARP.

Finally, if the power of attorney is written in a language other than Spanish, it must be accompanied by a translation into Spanish, in accordance with Article 11 of the RGRP. To avoid objections, it is advisable to verify in advance the type of translation accepted for the corresponding registration procedure.

Conclusion

A power of attorney granted abroad may be used and registered in Peru without necessarily having to follow the formalities of a Peruvian notarial deed. To determine its validity and registrability, it is necessary to identify the applicable law governing its form, verify that its requirements have been met, and comply with the relevant authentication and translation requirements.

Executing a power of attorney before a Peruvian consular official generally offers greater predictability when seeking to directly apply Peruvian formalities. However, executing a power of attorney before a foreign notary may also be a viable alternative, provided that its legal and registration implications are evaluated in advance.

At RGB Avocats, we advise individuals, companies, and investors on the preparation and review of powers of attorney executed abroad for use in Peru, as well as on their submission and registration with SUNARP. A preliminary review allows us to choose the most appropriate approach and reduce the risk of objections and delays.