What is a power of attorney: what is it for and what are the most common types?
In this article I will try to briefly explain what a power of attorney is, what the most common types of powers of attorney are and what they are for. I hope you find it interesting.
What is a power of attorney and what is it for?
A power of attorney in Law is the will of a person (principal) to authorise another (agent) to do something that may affect the person granting the power in their own person and/or their own assets. Thus, it consists of a kind of authorisation, empowerment or consent so that the person receiving the power can act on behalf of the one granting it with the same effects as if the person who gave the power were acting themselves.
When is it necessary for the power of attorney to be notarised?
In basic terms, when it comes to the following powers: powers of attorney for litigation, general powers of attorney, and powers of attorney intended for an act that must be drafted in this public deed or registered in some registry, it is necessary to make a notarial power of attorney. Also, commercial powers of attorney in which the management body of a company authorises a specific person to act for one or several acts.
Types of power of attorney
General powers:
It is the power that one person gives to another so that they have the authority to manage all their assets, allowing any act to be carried out regardless of its significance, in which case it is informally known as a power of ruin, or being able to exclude a specific action such as, for example, in the case of powers that enable everything except making donations.
This type of notarial power is especially granted by elderly people who seek to facilitate their children managing affairs on their behalf. Among this type of powers, the so-called preventive powers stand out, which are those that would remain even if a person became incapacitated after losing their mental faculties, which can be a powerful tool for a person to decide about the care they want to receive in the event of acquired incapacity. Notary Luis Alberto Álvarez Moreno, also a partner of J&LA Notarios, also published an article with more details about preventive powers.
What is self-guardianship and what is it for? And advance directives?
Within preventive powers, we find self-guardianship and advance directives. In self-guardianship, a guardian is appointed to carry out acts of asset disposition for people with disabilities, but in this case, the guardian needs to be authorised by a judge. This has been the case since the amendment of the Law /2021 of 2 June.
As for advance directives, this is a document addressed to doctors that is made according to the provisions of the different Autonomous Communities. It must be made in the presence of witnesses and expresses the instructions to be taken into account in a situation where a person cannot express their will. Medical treatments that are desired or not are considered, representatives are appointed to act as interlocutors with doctors, or the will regarding organ donation is determined. In the case of Catalunya, this document must be formalised before a notary or three witnesses and must include the patient's clinical history. The DVA or advance directives document must be registered in the Advance Directives Registry of the Department of Health.
Special powers
These are the powers that authorise the exercise of one or several specific faculties at the choice of the person granting the power. Due to the repeated use of some specific special powers in practice, I am going to define some of these types.
Power to buy or to sell: is the power in which one person authorises another to buy or sell a property. They are especially used for selling when there are several co-owners of a property and one resides outside the municipality where the property is located, to authorise the other co-owners to sell without him having to travel to the place where the sale signing will take place. Obviously, the person granting the power will receive the price corresponding to the right they had in the property. If you want to know more about sales and purchases, there is an article here.
Power to accept and distribute inheritances: is the power that one of the heirs gives to the others so that they accept and distribute the inheritance without the person granting the power having to attend the signing, receiving the right that corresponds to them in this inheritance. Sometimes all the heirs of a person give the power so that a lawyer can carry out all the procedures related to an inheritance. For more information about inheritance management, you can take a look at our guide to processing an inheritance.
Power of attorney for litigation
This is the power of attorney granted by a person so that one or several lawyers and/or court agents can carry out all the necessary actions in relation to a lawsuit involving the grantor. In this case, an electronic copy of the power of attorney must be sent from the notary's office to the Registry of Court Agents.
How to make a power of attorney?
The requirements are relatively simple to make a power of attorney, it being enough that the person who wants to grant the power goes to a notary with their valid DNI (or corresponding identification document). This person must be of legal age and be in full mental capacity.
Furthermore, to grant a power of attorney it is necessary to have the details (name, surnames and DNI) of the person (or persons) to whom the power of attorney is to be granted. In the case of empowering several people, the manner in which they are authorised to act must be determined. That is, it must be indicated whether the action will take place through the joint agreement and execution of the attorneys (joint power) or if they can proceed individually (several power).
In the case of powers for litigation, the names and surnames of the lawyers and solicitors must be known, as well as the Bar Association to which they belong and their professional number.
Price of the power of attorney
The price of the power of attorney is regulated by law in the notarial tariff. The notarial tariff establishes various criteria for the cost of powers of attorney: it increases if the number of pages increases, if there is a greater number of grantors or attorneys, and, in powers for litigation, when an electronic copy is sent to the Courts. Therefore, it is difficult to state the price of the power of attorney until it has been carried out, but what can be affirmed is that it is one of the cheapest acts performed in a Notary's office.
Frequently Asked Questions about the Power of Attorney
How long does it take to get an appointment to grant a power of attorney?
It is advisable to make an appointment in advance at the Notary's office, however, it is usual for the power of attorney to be granted on the same day or the following day. If you are looking for a notary in Barcelona, we are at your disposal.
What happens if we have lost trust in our attorney-in-fact?
In this case, we advise you to go to your trusted notary, which may be different from the one where you granted it, to revoke the power of attorney, that is, to render it ineffective. For this, we need to know the details of the power of attorney you granted (Notary, date and protocol number) or a copy of the power of attorney.
Once this is done, the representative must be notified that the power of attorney has been revoked, and that they must hand over the copy in their possession, warning them that, if they make use of it, they may incur liability, including criminal liability.
Finally, the notary where the power of attorney was granted will be notified that it has been revoked, so that they record this on the original and do not issue any copies.
How to cancel a power of attorney?
If our attorney refuses or has lost their authorised copy of the power of attorney, it can be revoked by the principal going to a notary and carrying out the procedure to revoke the power of attorney. Sometimes, the duration of the power of attorney is established in the document, but this is not usual. Many are granted for an indefinite period and their validity is indefinite. To revoke the power, a document is drawn up in which the principal expresses their intention to revoke, which must be notified to the attorney through the notary to be effective.
How can an international power of attorney be obtained?
If the power of attorney is intended to have international effects, either because it is granted in Spain for another country, or because it is granted abroad to produce effects in Spain, it must be apostilled. The "Hague Apostille" ensures legal effectiveness within the countries that are part of the Hague Convention.
Learn more about the Hague Apostille in this post:
To conclude, I just want to express my hope that this article has helped to spread knowledge about the actions carried out in the notarial world. I hope it has been helpful in understanding what a power of attorney is. If you have any questions or wish to formalise a power of attorney in Barcelona, you can do so at JLA Notarios Asociados, our notary office in Barcelona.
