It is the notarial document by means of which, an attorney-in-fact, to whom a certain person has conferred a power of attorney, transmits this power of attorney in favor of a third party, in such a way that the original attorney-in-fact ceases in his faculties, which are transferred to a third person, who receives the denomination of substitute, so that, from that moment on, it will be this substitute who will be able to exercise the faculties of the original power of attorney in name and representation of the person who granted it.
This is a merely informative and non-binding estimate. It is calculated on the basis of two criteria: 1) our knowledge of the Notarial Tariff and 2) our daily experience in the preparation of this type of notarial document. (Royal Decree 1426/1989, dated November 17, 1989). and 2) our daily experience in the preparation of this type of notarial document. However, any variation (upward or downward) will be duly justified at the time of issuing the final invoice for the notarial service rendered.
As indicated in the definition of this act, the deed of substitution of power of attorney is the instrument by means of which, having previously existed a power of attorney (whether general or special), granted by a specific principal and in favor of a specific attorney-in-fact, said attorney-in-fact proceeds to transfer his powers to a third party, The latter, being called a substitute, from that moment on, assumes the powers originally assigned by the grantor, and may therefore act in the name and on behalf of the original grantor, within the scope of the powers referred to in the power of attorney in question.
Thus, by means of the act of substitution, the original attorney-in-fact, who is legally called the substitute, ceases or sees his powers extinguished (i.e., he ceases to be an attorney-in-fact), since such powers conferred by the principal are assumed by the "new attorney-in-fact", who is legally called the substitute.
<ejemplo>“Para una mayor comprensión del acto, se trataría de un supuesto de sustitución el caso en el que, por ejemplo, la Sra. María confiere un poder especial a favor de la Sra. Juana (para que ésta, en su nombre y representación, pueda vender una vivienda propiedad de la Sra. María), pero por la razón que sea, la Sra. Juana no puede o no quiere ejercer dichas funciones, de tal suerte que dicha la Sra. Juana transfiere estas facultades a una tercera persona, en este caso la Sra. Antonia, para que sea ésta la que finalmente realice la venta de la vivienda en nombre y representación de la poderdante original, es decir, de la Sra. María”.<ejemplo>
As is generally known, a power of attorney is an instrument to which any person may resort when, for any reason, he is unable or unwilling to perform an act by himself, and wishes or needs to entrust its performance, in his name and on his behalf, to a third party, who is called an attorney-in-fact. Thus, if everything goes smoothly, it will be this attorney-in-fact who will carry out the act or business for which he/she has been empowered and the power of attorney will have fulfilled its purpose.
However, it may happen that, for any reason, the appointed attorney-in-fact is unable or unwilling to exercise the powers conferred.
<ejemplo>“Ello se puede dar en múltiples ocasiones, como por ejemplo si se ha roto la relación de confianza entre poderdante o apoderado, si el apoderado ha sufrido cualquier percance o imprevisto que le impide ejercer sus funciones de forma adecuada, o si se ha producido cualquier circunstancia que determina la posibilidad de que otra persona ejerza las funciones conferidas en el poder de un modo más adecuado”.<ejemplo>
Thus, if any of these circumstances arise, in order to avoid the principal having to revoke this power of attorney and grant a new one in favor of a third person, there is the possibility of resorting to the figure of substitution, whereby, as mentioned above, the attorney-in-fact terminates his representation and transfers his powers to a "new attorney-in-fact", called a substitute, who will be the one who, from that moment on, exercises the powers of the power of attorney in the name and on behalf of the principal.
Consequently, as has been indicated, the figure of substitution is an instrument that allows preserving the validity of a power of attorney when, for whatever reasons, the attorney-in-fact is unwilling or unable to exercise the powers conferred, so that the powers are transferred to another attorney-in-fact so that the principal may also obtain the intended representation but, in this case, through another person than the one initially appointed.
As it is logical, and as it has already been referred to when developing the figure of the power of attorney (either general or special) in the corresponding sections of this web page, the granting of a power of attorney has to be based on the strict and firm confidence that the principal has in the attorney-in-fact, since an improper, bad faith or negligent use of the power of attorney can cause serious economic and patrimonial consequences for the principal.
Taking into account this relationship of strict trust between the principal and the attorney-in-fact, it is logical that, as a general rule, the appointed attorney-in-fact cannot transfer the powers conferred to any person, at any time, or in any way, but this will only be possible in certain specific cases and when certain circumstances are met.
Thus, the law only allows this possibility of substitution if the principal has not expressly prohibited it in the power of attorney.
Based on the need for the principal not to have prohibited the possibility of substitution, substitution may be carried out without any problem in the following cases:
In accordance with the regulation of the mandate contract, supplementary in the field of powers of attorney, it is necessary to indicate that it is the obligation of the attorney-in-fact to give an account of his operations to the principal, so that, resorting to a broad teleological interpretation, it can be stated that in effect, the attorney-in-fact who replaces the power of attorney, even when expressly authorized by the principal, is obliged to notify the principal in a reliable manner, since in the end he is the person interested in knowing to whom the powers conferred by the principal are to be exercised.
Likewise, from a logical and prudent point of view, it is necessary that this be notified, since if the principal wishes, if necessary, to revoke the power of attorney, he/she needs to know the substitutions that, if any, have been made.
Indeed, the notarial legislation determines that, in short, the substitution, being a modification of the original power of attorney, if it is authorized by a notary other than the one who authorized the original power of attorney, this circumstance must be notified, by this second notary public, to the notary who holds the protocol of said power of attorney, so that he/she may record it in his/her matrix. In any case, this is a procedure to be carried out by the notary's office ex officio, without any additional procedure to be carried out by the interested parties.
The answer to this question must be in the negative, since this is the basic difference between the figures of substitution of power of attorney and sub-authorization. Thus, if the power of attorney is substituted, the substitute will lose the powers that have been transmitted to the substitute, while, on the contrary, if the figure of the sub-powers of attorney is used (which is detailed in another section of this website), the original attorney-in-fact will keep his powers intact.
As has already been emphasized on many occasions, the granting of any kind of power of attorney must be based on a relationship of trust between the principal and the attorney-in-fact, since from the moment the power of attorney is granted, the principal is granting the possibility for the attorney-in-fact to perform acts or business on his behalf and representation, which, if performed in good faith and in a diligent manner, may benefit his person and his assets, but, on the contrary, if performed in bad faith or negligently, may cause him great harm.
Therefore, and on this basis, the granting of the power of substitution must be something very meditated on the part of the principal, since by recognizing it, he is granting the possibility that finally a third person may act on his behalf and representation, and not the original attorney-in-fact that he has appointed, which may entail a breach of such trust if this third substitute person does not meet the necessary qualities to do so.
It is therefore recommended to reflect deeply on the granting of this possibility and, where appropriate, limiting the spectrum of persons who may assume the role of substitute, thus avoiding unpleasant surprises that may cause serious economic damage to the assets of the principal.
As has been indicated, the substitution of power of attorney simply implies a change in the person of the attorney-in-fact, since the person originally appointed is displaced by the substitute, who is the one who, from that moment on, can exercise the powers of the power of attorney in the name and on behalf of the principal.
Therefore, by means of the substitution of the power of attorney, the substitute may perform the same acts or legal business contemplated in the original power of attorney (whether it is a general or special power of attorney), with the only difference that now it is a different person who exercises such representation.
If the principal has expressly forbidden the possibility of substitution, and such substitution takes place anyway, the law determines that such acts shall be null and void and shall not prejudice the principal, that is to say, that they shall have no validity or effectiveness whatsoever.
On the contrary, if the possibility of substitution is foreseen and the principal has indicated the specific persons who can assume the role of the substitute, if such substitution takes place, the acts performed by the substitute will be perfectly valid and legal, without any problem about it.
Finally, if the principal has not expressly prohibited the possibility of substitution, but has not expressly provided for it either, if the substitution is made and the principal does not expressly accept it, two things can happen with the acts performed by the substitute:
In accordance with the provisions of the law, if the replacement has been carried out properly, it shall have no liability.
However, if the substitution has been carried out despite the prohibition of the principal, or the substitute is notoriously incapable or insolvent, the Civil Code determines that the substituting attorney-in-fact shall be liable for the management of the substitute.
Indeed, if the original power of attorney was granted through a public deed, a substitution, which ultimately implies a modification thereof, must be executed through a public deed.
The substitution of power of attorney may be granted by the attorney-in-fact of a power of attorney, unless this has not been expressly prohibited by the principal and, logically, provided that he/she is in full intellectual and volitional capacity to govern himself/herself, relate to reality and understand the legal significance of his/her acts.
As regards the personal qualities of the person to be appointed as substitute, it is necessary that he/she has the capacity to carry out the act or business to which the power of attorney refers and, in general, 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 acts.
Indeed, if more than one attorney-in-fact has been appointed in the original power of attorney, and substitution is possible, said attorneys-in-fact may appoint several substitutes to occupy the respective places that they abandon in the power of attorney.
The substitution of a power of attorney shall have the duration of the power of attorney in question, so that it shall be taken into account in order to determine, as the case may be, the time limitation of the substitute's performance.
Of course, the principal may revoke the original power of attorney at any time he/she wishes, so that if the substitution takes place, and the principal decides that he/she no longer wants the third person to represent him/her, by revoking the original power of attorney, the substitution, being a modification thereof, will also be without effect.
In any case, to this effect, the reasonable thing to do is to notify the revocation of the power of attorney to the substitute so that he/she has a reliable record of it and refrains from making use of the power of attorney.
Of course, the substitute may also resign from his office at any time, as soon as he so desires, so that if he deems it appropriate, he may choose not to make further use of the power of attorney, destroy the original of the power of attorney or, as the case may be, formalize his resignation by means of a public deed.
For more information on this subject, please refer to the section of this website on the waiver of proxies.
The deed of substitution must only be signed by the attorney-in-fact, i.e., the person in favor of whom the original power of attorney was granted, so that it will not be necessary for the new attorney-in-fact or attorneys-in-fact (who are called substitutes) to attend the signing of the deed nor to accept their designation as such, nor of course the original granter of the power of attorney.
Indeed, for the substitute to be able to make use of the power of attorney and carry out all the legal acts or business referred to therein, it will be necessary for him to have an authentic copy of the document, so that it seems reasonable that the attorney-in-fact who ceases to hold office should deliver the document to him, as well as the deed of substitution.
Once the deed of substitution has been signed, the notary's office will proceed, in the same act, to deliver an authentic copy of the deed of substitution to the grantor, so that the latter may make the corresponding use of the same.
Of course, the notary can go to your home to sign the substitution of 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 legislation does not provide for the registration of powers of attorney granted by individuals in any public registry, which would undoubtedly be positive, since it would provide operators with greater legal certainty, since any interested party contracting with the attorney-in-fact could check whether the power of attorney is still in force or, on the contrary, has been revoked.
Consequently, the substitutions of proxy shall not be recorded in any public registry.
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.
Of course, if the reason for the granting of the substitution of the power of attorney is that the substitute may intervene in a transaction that is signed in a Notary's office far from the domicile of the original attorney-in-fact (let us imagine a case in which the original attorney-in-fact resides in Barcelona and the transaction is to be carried out in a Notary's office located in Seville), if the applicant so requires, it is possible to send an electronic copy of the substitution of the power of attorney to the Notary's office where the transaction is signed, so that the substitute can intervene, without having to physically send the true copy of the substitution of the power of attorney by mail, courier or any other means.
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In the case of a foreign company, it will also be necessary to provide:
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