It is the notarial document by means of which a person, who received in due time a power of attorney to act in the name and on behalf of another, decides not to continue with that representative mandate. Thus, he/she voluntarily decides to terminate his/her capacity to perform legal acts or business in the name and on behalf of the principal.
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 is known, a power of attorney is a document, which takes the form of a public deed, by virtue of which a person, who is called the grantor, grants powers to another person, who is called the attorney-in-fact, so that the latter, in the name and on behalf of the grantor, may carry out the legal acts or business detailed in the body of the deed.
Logically, the exercise of these representative powers is a voluntary act, which may be framed in a contractual relationship between the principal and the attorney-in-fact (in the event that, for example, there is a consideration for the services rendered) or, on the contrary, in a gratuitous or disinterested act on the part of the attorney-in-fact (which happens, for example, in the case of a power of attorney granted by a parent suffering from a physical disability in favor of a child so that the latter may manage his economic and patrimonial affairs).
Be that as it may, as indicated, the function of the attorney-in-fact is a purely voluntary act, which may be exercised for as long as the attorney-in-fact wishes or, as the case may be, as stipulated in the power of attorney, but which, in any case, and whatever the circumstance, may be abandoned whenever he wishes, and may therefore renounce this responsibility and cease to act in the name and on behalf of the principal.
To this effect, and beyond the possibility of simply not using the power of attorney, in order to solemnly and properly formalize this waiver, it will be necessary and convenient to grant the corresponding power of attorney waiver deed, the details of which will be analyzed below.
As indicated above, by renouncing the power of attorney, the appointed attorney-in-fact, voluntarily, solemnly manifests his will to cease in the appointed position, so that, from that moment on, he will no longer have the capacity to execute legal acts or business in the name and on behalf of the principal.
In the material reality there are multiple situations that can trigger the need to renounce the power of attorney that was granted, such as, for example:
Indeed, it is possible to waive any kind of power of attorney granted, whether it is a general or special power of attorney for a specific legal act or business.
Indeed, as is the case with the revocation of the power of attorney, the attorney-in-fact may resign from his office as soon as he wishes, without any limitation whatsoever.
As indicated above, the attorney-in-fact may waive his or her liability as soon as he or she wishes, but for the waiver to be effective, the attorney-in-fact must first inform the principal of his or her waiver of the power of attorney.
Likewise, in order to guarantee the continuity of the business or acts that give rise to the power of attorney, the law determines that, in the event that the reason for the power of attorney is an underlying mandate contract, the attorney-in-fact must continue with its management until the principal has been able to make the necessary arrangements to cover this lack (such as, for example, the granting of a power of attorney in favor of another person to replace the functions of the attorney-in-fact who resigns).
In this case, the attorney-in-fact must take into account that if he/she does not comply with this obligation, the law determines that he/she must indemnify the principal for the damages caused, unless his/her resignation is based on the impossibility of continuing to perform the mandate without serious detriment to himself/herself.
Of course not, since the waiver of a power of attorney is a discretionary and free act of the attorney-in-fact, which can be made at any time, without it being necessary to prove or justify a specific cause for it.
In order to proceed with the waiver of the power of attorney, if the same was granted by means of a public deed, it will be necessary to go again to a Notary Public for the purpose of granting a power of attorney waiver deed, that is to say, a formal act in which the attorney-in-fact formally and solemnly declares that, voluntarily, he/she wishes to end his/her responsibility as attorney-in-fact of the principal, thus waiving said representative powers.
Indeed, it is possible to grant the deed of renunciation of a power of attorney in any Notary Public in Spain, without it being obligatory to grant it in the same notary's office that originally authorized the power of attorney that is being renounced.
In such case, if the waiver is granted in a different notary's office, the Notary who authorizes the document shall, ex officio, inform the Notary who is the holder of the protocol in which said power of attorney is recorded, so that he/she may record it in the matrix.
The power of attorney waiver deed can only be granted by the attorney-in-fact in favor of whom the power of attorney deed to be waived was granted.
Only the attorney-in-fact who renounces shall attend, and it is not necessary for the principal to attend.
Logically, the attorney-in-fact must inform the principal of the waiver of his power of attorney, so that the latter is aware of such circumstance and can thus adequately protect his interests, for example, by granting a new power of attorney in favor of another person so that the latter may assume from now on the representative powers required.
Beyond the logic indicated above, as already detailed in a previous question, the law obliges the attorney-in-fact who renounces his representative mandate to notify the principal, with the obligation to, in addition, continue with the steps he usually carries out until the principal can take the necessary decisions to cover his absence.
As regards the manner in which this waiver must be communicated, the law does not impose any obligation in this respect, so that it can be done by the principal himself or, if desired, it is possible to entrust the notification of the waiver to the notary's office, for the purpose of leaving a reliable record that the principal has received the notification of the waiver, which may be convenient in case there is a conflicting relationship between both parties that makes it advisable to do so.
Once the waiver deed has been signed, the notary office will proceed, in the same act, to deliver an authentic copy of the power of attorney waiver deed to the former attorney-in-fact, so that he/she may make the corresponding use of it.
Of course, the notary may travel to sign the waiver at your home, since the law obliges to guarantee the notary public service to all those disabled, 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.
Therefore, logically, his resignation is not registered in any public registry.
Additionally, 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 be able 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, so that, as indicated, at present there is no registry in which the granting or revocation of powers of attorney is registered.
Beyond the figure of the waiver that has been explained in these questions, the law determines that the power of attorney will also end in case of revocation of the power of attorney (figure that is explained in detail in another section of this web page) or in case of incapacity of the attorney-in-fact.
Likewise, it will also be without effect in the event that the principal or the attorney-in-fact dies or, if applicable, either of them is declared prodigal (case in which a person squanders his assets in superfluous goods, as for example in case of gambling addictions, as a result of which a curator is appointed to watch over his assets and to authorize, if applicable, which specific acts or businesses he may enter into) or enters into a situation of bankruptcy or insolvency.
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In the case of a foreign company, it will also be necessary to provide:
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