Can a Deed Be Signed with a Power of Attorney?

Depending on the scope and type of act to be delegated, there are two main types of powers to be granted:

• The special notarial power: in this case the power is delegated for a single specific action, in this case signing a deed, and it is extinguished after the act.
• The general notarial power: allows several legal acts to be carried out once granted, which implies the granting of broader representation powers.

The most common cases are the following:

1. Power of attorney to sign inheritance deed. In this case, the person who has been granted the power of attorney signs on behalf of the heir (principal) the acceptance or even the renunciation of an inheritance. Furthermore, this power can be used for the transfer of their hereditary rights to a third party or to a co-heir.
   In  our Notary Office on the Diagonal in Barcelona, it is usually processed in cases of heirs who work or live abroad and delegate the signing of the inheritance deed to a trusted person.
2. Power of attorney to sign deed of sale or purchase of property. In this case, a person is authorised to buy or sell a property on your behalf before a Notary. The power of attorney must specify the property subject to the sale (it can also be made generic to buy or sell any real estate) and the powers granted to be able to sign the deed of sale.
3. Notarial power of attorney to sign mortgage. It is also possible for another person to sign the mortgage loan deed by means of a notarial power of attorney. With this power, the attorney-in-fact can not only sign the mortgage deed, but also participate in the material transparency report, receive all prior information and subscribe to any document related to the mortgage loan on behalf of the principal, always with the same validity and legal effectiveness as if they did so personally.

In principle, all powers of attorney are revocable: the principal can revoke at any time the powers granted to another person. This is the general rule in our legal system.

However, legal practice and the case law of the Supreme Court have accepted the figure of so-called irrevocable powers of attorney, in very specific cases. Irrevocability is justified when the power of attorney is not an isolated act, but forms part of an underlying contract or business in which not only the principal and the attorney-in-fact are interested, but also third parties.

In these cases, unilateral revocation would frustrate the purpose of the main contract, so the law allows the power of attorney to be a necessary instrument for its fulfilment. In other words, the power of attorney is irrevocable when:

It corresponds to the execution of a bilateral or multilateral contract.

The attorney-in-fact has a personal interest in the business, beyond that of the principal.

Irrevocability is essential for the contract to produce its effects.

The case law of the Supreme Court (among others, STS 1240/2007, of 20 November, and earlier rulings from 1987, 1991, 1993 and 1999) admits its legality in these cases, applying article 1257 of the Civil Code.

Nevertheless, even in so-called irrevocable powers of attorney, if abuse, breach or serious harm to the principal occurs, revocation may succeed, with the corresponding indemnity consequences (articles 1101 and 1106 CC).

In short, the existence of irrevocable powers of attorney is not the rule, but the exception, and their acceptance always depends on a case-by-case analysis and the fulfilment of the aforementioned requirements.