General Power of Attorney

As regards the need for the general power of attorney to be executed by means of a public deed, it is necessary to indicate that the law determines that the power of attorney must be recorded in a public deed when its purpose is to administer property or perform acts that must be drafted in a public deed or be detrimental to third parties.

Thus, if we examine the typology of powers included in a general power of attorney, we will see how these requirements are fulfilled, so that for its granting it will be necessary to resort to the execution of a deed, authorized by a Notary Public, who is a public official, a legal professional and a specialist in private law, who will ensure the legality of the power of attorney and the legal security of the principal.

As regards the persons who may grant a general power of attorney, i.e., who may assume the role of principal, it is necessary to indicate that the general principle that the person granting the power of attorney must have the capacity to perform all the acts entrusted in the power of attorney shall apply, since it would be illogical for a principal to confer powers to a third party to carry out a legal transaction that he himself does not have the capacity to perform.

Therefore, as a general rule, and taking into account the nature of the legal acts and businesses that concern a general power of attorney, in order to be able to grant it, it will be necessary that the grantor has full capacity to act, which is held by persons of legal age, i.e., 18 years of age, and who are in full intellectual and volitional capacity to govern themselves, relate to reality and understand the legal significance of their actions.

As regards the personal qualities of the person to be appointed as attorney-in-fact, it is necessary that he/she has full capacity to act, that is to say, that he/she is of legal age (18 years old), and that he/she has full intellectual and volitional capacity to govern him/herself, relate to reality and understand the legal significance of his/her actions.

Of course, it is possible for the principal to designate more than one attorney-in-fact in the power of attorney, so that two or more persons may exercise the powers provided for in the power of attorney.

In such a case, as regards the form of action, it is necessary to indicate that it will be conditioned to what the principal establishes in his deed, so that he may choose whether he prefers that the two or more attorneys-in-fact act jointly (i.e. that each one may act on his own) or, on the contrary, jointly, i.e. jointly.

In the event that the form of action is not specified, it is understood that, in application of the principle of written interpretation of the powers of attorney, the attorneys-in-fact shall act jointly.

The law and jurisprudence determine that powers of attorney, including general powers of attorney, must logically be interpreted by means of a principle of prudence and restrictive and strict interpretation, so that the attorney-in-fact may only perform those acts or legal business that have been clearly, expressly and clearly established in the power of attorney, while, on the contrary, everything that is not specified or is doubtful or interpretable, will be outside the scope of action of the attorney-in-fact.

The power of self-contracting is a provision that may be included in the general power of attorney deed by virtue of which the principal confers the authorization to the attorney-in-fact so that the latter, when acting in his name and on his behalf, may conduct business with himself.

<ejemplo>“Así pues, un ejemplo de ello sería el supuesto en el que un poderdante concede un poder a favor de un apoderado para que éste, en su nombre y representación, venda una vivienda que le pertenece, pero en dicho poder le autoriza asimismo a que sea el propio apoderado quien adquiera la vivienda”.<ejemplo>

On the other hand, the power to oppose interests is that provision that may be included in the general power of attorney deed by virtue of which the principal authorizes the attorney-in-fact to use the power of attorney even in those cases in which there may be conflicts of interest between both parties.

<ejemplo>“Lo que por ejemplo, puede suceder en el caso de que una persona conceda un poder a otra, para participar en una subasta de un bien, en la cual también forme parte el apoderado como postor. En este caso, como se puede observar, existe un conflicto entre ambas partes, pues la oferta que pueda realizar el apoderado, en nombre y representación del poderdante, entrará en conflicto con la que pueda hacer el apoderado en su propio nombre y representación, de modo que la actuación del apoderado, en nombre y representación del poderdante, sólo sería válida si en el poder que se conceda se especifica expresamente que se puede hacer uso del mismo incluso en situaciones de contraposición de intereses con el apoderado”. <ejemplo>

In principle, if the principal, as a result of a traumatic process or cognitive degeneration, loses his natural capacity to understand and to will (as can happen with a disease such as Alzheimer's, for example, or with cerebral palsy resulting from a traffic accident), the general power of attorney will lose its validity.

However, the law allows the inclusion of a clause in the power of attorney, called the subsistence clause, by virtue of which the power of attorney will remain valid even in the event that the person who granted it loses his natural capacity to understand and will. In such a case, if the formalities required by law are complied with, the attorney-in-fact may continue to make use of the power of attorney even if the principal's cognitive capacities have been impaired.

This provision will undoubtedly be very useful for the general powers of attorney conferred by the elderly in favor of persons of their trust (generally, their children), so that, in the event that such persons are affected by a decrease in their mental capacities, their children can attend to their obligations and manage their assets in an adequate manner without the need to resort to a judicial process of incapacitation, which will be costly and time-consuming, as this could take years in view of the lamentable saturation and collapse of the Administration of Justice in Spain as a result of the everlasting lack of material and personal resources it suffers from.

The duration of the general power of attorney will be determined by the principal in the power of attorney deed, so that if desired, its validity can be limited in time (for example, to 1, 2 or 3 years, or as many as desired) or not.

In the event that the term of the power of attorney is not expressly determined, it is understood that it is valid indefinitely, so that the attorney-in-fact may use it until the death of the principal.

Of course, the principal may revoke the power of attorney at any time he/she wishes, so that if once the power of attorney has been conferred, the principal considers that he/she no longer wishes to maintain it, for whatever reason (such as loss of confidence, cessation of need, etc.), he/she may go to the notary office to execute a deed of revocation of the power of attorney in order to terminate the power of attorney.

For more information on this subject, please refer to the section of this website on the revocation of powers of attorney (HERE).

Of course, the attorney-in-fact can also resign from his office at any time, as soon as he so desires, so that, if he considers it appropriate, he can choose not to make further use of the power of attorney, destroy the original of the power of attorney or, if necessary, formalize his resignation by means of a public deed. For further information on this subject, please refer to the section of this web site on the waiver of powers of attorney (HERE).

Of course, there is no problem in this, so that, if for any supervening circumstance it is necessary to modify the general power of attorney to include or withdraw some specific power, this is perfectly possible. For this purpose, it will be necessary to go to the notary's office to execute the new deed modifying the general power of attorney.

The power of attorney deed must only be signed by the principal, i.e., the person granting the power of attorney, so that it will not be necessary for the attorney-in-fact or attorneys-in-fact to attend the signing of the deed or to accept their designation as such.

Once the power of attorney has been signed, the notary's office will proceed, in the same act, to deliver an authentic copy of the power of attorney to the principal, so that the latter may make the corresponding use of it.

Indeed, in order for the appointed attorney-in-fact or attorneys-in-fact to be able to make use of the power of attorney, it will be necessary for the principal to deliver the certified copy, so that from that moment on the attorney-in-fact can make use of the document in any legal act or business, in the name and on behalf of the principal.

Of course, the notary can go to your home to sign the power of attorney, since the law obliges to guarantee the notary public service to all those handicapped, sick or with reduced mobility who cannot go to the notary's office by themselves.

However, it will be necessary to take into account that, in such a case, as a matter of territorial competence of the Notary requested, it must be a Notary of the locality in question in which the domicile of the person who is unable to travel is located.

Unfortunately, at present, the current regulations do not provide for the registration of general powers of attorney granted by individuals in any public registry, which would undoubtedly be positive, since it would offer guarantees of greater legal certainty to operators, since any interested party contracting with the attorney-in-fact would be able to consult whether the power of attorney is still in force or, on the contrary, has been revoked.

In this regard, it is necessary to indicate that in the past, an attempt was made to create a registry of revocation of powers of attorney in which all revocations of powers of attorney would be registered, in order to verify their validity. However, such registry, provided for in a regulatory norm, was considered illegal by the Supreme Court and the same was left without effect, for which reason, as indicated, at present there is no registry in which the granting or revocation of powers of attorney is recorded.

However, if the attorney-in-fact includes the subsistence clause in the power of attorney (which has been explained above), in such case, this circumstance must be duly registered in the Civil Registry, in order to record it and publicize this fact so that anyone may be aware of this provision, in case it is necessary to use the power of attorney in this situation. In order for this to be so, when the power of attorney is granted, the Notary's Office will send by mail a copy of the general power of attorney to the corresponding Civil Registry, for the purpose of recording it in said public registry.

In the event that the general power of attorney granted is to be effective outside the Spanish state, it will be necessary to have it apostilled, that is to say, to carry out an additional procedure, provided for in the XII Hague Convention of October 5, 1961, which will allow it to be effective in a country other than Spain, as long as said country has signed this international convention.

This procedure of apostille will be carried out in the College of Notaries of Catalonia and, to such effect, its management can be carried out by the interested party himself or, if he wishes, he can entrust it to the notary's office itself, so that once the procedure has been carried out, the apostilled power of attorney will be delivered to him.

As a general rule, the power of attorney will be granted in Spanish (or, as the case may be, the co-official language of the Autonomous Community in question). However, it is possible to grant a "double-column" power of attorney, that is to say, written simultaneously in Spanish and its corresponding translation into a foreign language, as long as the authorizing Notary knows that language and can verify that the content is the same.