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Chile Relocation and Retirement Articles
|Chile Law: Notaries and Powers of Attorney|
|Chile Relocation and Retirement Articles|
Notary Publics in Chile
A notary public in Chile has much more power and responsibility than notaries in other countries. They are also far more regulated as a consequence. A close analogy would be something similar to a clerk of court in the United States. They are ministers of faith, and are charged with verifying not only signatures but the structure of official legal documents to a certain extent.
Notaries are also charged with keeping a public records of various transactions such as contracts for transfers or purchases of property, business contracts, and just about any other type of document that you might need to sign. Essentially, if you want to enforce a contract at some point in court it is best to have it notarized or converted into a public deed at a Notary. There are many contracts that Chilean law requires to be registered in the form of a public deed, such as in the case of property purchase.
Be aware that "notarized" could be two different things, either your signature is notarized on a document (under Chilean law that type of document is referred to as "private document") or the actual draft given by the parties is converted into a pubic deed, therefore the original archive is in a public record ("public documents" under Chilean Law)
With such an important role in the Chilean system, notaries are monitored closely. Notaries in Chile can, and do, loose their licenses if they are found to be engaging in corrupt practices, are failing to maintain proper documentation and records, or fail to execute their other duties.
If you do not speak Spanish one of a notary's most important duties is to insure that you understand what you are signing. This is also true of such situations as when a Mapuche Indian is signing a legal document. Not every notary in Chile will be so careful about this, but they do get in trouble if they are found not to be checking that the people signing the contract understand the contract. Careful notaries will go through every major point of the contract and ask you if you agree and understand. They also will go through and carefully verify all the identifying data. For example, your RUT or passport number, addresses, and so on.
Any parties signing a document in Chile, say for a purchase contract for real estate, must both sign at the same notary because that document must become a public record of that notary office. You can not sign a contract as the buyer at one notary, then mail it to a seller and have them counter sign at another notary. This is why we have picked the power of attorney as our example document that is most commonly signed outside the country because someone must sign on your behalf at the same notary public to validate the contract.
Notarizing a document outside of Chile, for executing inside Chile.
This is where Chilean notarization gets complicated as Chile is not a party to the Hague convention on Legalization. One of the most common documents and services that we handle for our clients are limited powers of attorney when our clients are unable to or can not visit Chile in person.
A power of attorney can be executed for just about anything in Chile. That said, powers of attorney should be limited in scope to particular tasks or goals, and they MUST be drafted by a qualified attorney. A poorly drafted power of attorney, after getting all the proper authorizations outside the country, can ultimately be rejected or accepted by each Notary or each government office if not drafted correctly. As you will see, the amount of effort and expense you need to validate a power of attorney inside of Chile makes it essential that the Power of Attorney be well drafted from the start.
Remember, any power of attorney you sign is giving away your power of signature, and you are responsible for whatever the person with the power does with it. Keep it simple, and only give powers of attorney to people you trust for very specific tasks. We have seen a lot of people get themselves in a lot of financial and legal trouble because they easily gave away powers of attorney simply because they thought it would be convenient or save time.
So, you have receive a power of attorney, drafted by a qualified attorney in Chile. Your first step is to make a decision about the easiest of two methods open to you to get a document notarized outside of Chile. The first is to simply find your nearest Chilean Consulate and go there. The second is to have the document notarized by a notary from your home country, then have that signature legalized by your state department and legalization office, then sent to the Chilean consulate to be validated in your home country.
The first method is the preferred method because it leads to the least number of mistakes. We have had numerous problems with in country legalization of none Chilean notary signatures. Stamps get missed and offices and signatures get missed. Going to the local consulate is not a problem if you for example you live in a major international city such as Los Angeles, New York, or London. If however the time and expense involved in reaching your nearest Chilean consulate is too much, legalizing a local notary signature may be your only option.
Legalizing for Chile, and foreign Notary signature
Every country has a bit of different system for legalizing documents for countries that are not party to the Hague Convention. For example, in the United States there is a legalization service that handles pushing the document through the various levels of State and Federal offices to authenticate that the Notary is in fact authorized to notarize documents in the United States. In whatever country you have it done, each signature of each official above the notary must certify the chain of authority for that person all the way to your foreign ministry or state department. So, you can see where there are lots of ways for things to go wrong.
We recommend that you check the website for the Chilean embassy located in your country for the procedures specific to your situation.
You are not done yet. Once you receive all the legalization of your local notary public inside your country, you must then send the document to the Chilean Embassy to have them finally certify that all the authorizations are legal and valid. In our experience however we have discovered that from consulate to consulate this can be done with different levels of care. In fact, we have as an internal policy of our firm to ask our clients to fax us the document before they mail it to us, in order to save another trip for the document back around the World because some step was missed.
Regardless of what method you use to notarize the document outside of the Chile, once the document arrives in Chile it must go to the Chilean Foreign Affairs Office in Santiago, for the Chilean Consul's signature to be legalized in order to be a valid legal instrument in Chile.
This might all seem very complicated, and we highly urge you to seek professional assistance with the process, but this system is also designed to protect you and the country of Chile from shady or illegal deals. It makes it extremely difficult for someone to use a forged power of attorney in Chile.
So, the path to least resistance is first if at all possible to sign a power of attorney or your contract directly inside Chile at a notary public. Second, if you can not sign in person inside Chile, try to make plans to visit the Chilean consulate yourself. Only as a last resort should you depend on the long and sometimes costly process of legalizing your local notary's signature.
Zandra Valenzuela is a Chilean attorney at law , and currently a professor of international law at two Universities in Chile. Zandra specializes international public law, international jurisdictional issues, real estate law and is senior legal partner at Spencer Global Consulting. For more information please see Chile Relocation Services Page.