It is the notarial document by means of which a person grants powers to another person so that the latter may act in his name and representation in all those acts, businesses or contracts foreseen in the power of attorney.
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.
A special power of attorney is a document, which takes the form of a public deed, by virtue of which a person, who is called the principal, grants powers to another person, who is called the attorney-in-fact, so that the latter, in the name and on behalf of the principal, may only enter into the contract, act or legal business detailed in the body of the deed, so that the attorney-in-fact may only act on behalf of the principal to carry out that specific act or business, without his powers extending to any additional area.
<ejemplo>“Así pues, por ejemplo, si una persona extranjera que reside en España debe realizar algún trámite ante la administración de su país de origen, pero por culpa de la pandemia del Covid-19 no se puede desplazar hasta el mismo, puede otorgar un poder especial para que alguien de su confianza, en su nombre y representación, realice este trámite ante la autoridad correspondiente”.<ejemplo>
In general, 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, as indicated above, is called an attorney-in-fact.
On this basis, if, as has been indicated, the specific characteristic of the special power of attorney is that it allows the attorney-in-fact to carry out only that specific legal act or business to which the powers of the power of attorney entitle him/her, so that the attorney-in-fact may only and exclusively carry out that specific, concrete and determined legal act or business, without being authorized to carry out any other procedure, management or contract in the name and on behalf of the principal.
Thus, unlike the general power of attorney, which grants broad powers to the attorney-in-fact to carry out all kinds of legal acts or businesses, the special power of attorney is a much more limited instrument, since it only enables the attorney-in-fact to carry out the specific and concrete business or act that the principal considers necessary, being restricted and forbidden any additional act, contract or business.
Taking into account this reality, the granting of a special power of attorney may be appropriate for persons who, for any reason, need to carry out a specific and concrete legal act or business, but are unable or unwilling to attend the place and time where such act or business will take place, so that in order to avoid that such act or business cannot be carried out, they grant a special power of attorney so that a third person, in their place, goes in their name and on their behalf to carry out such specific business, act or procedure.
Thus, we can imagine multiple situations in which the special power can be useful, such as, for example:
<ejemplo>“En el caso de que se deba comprar o vender una vivienda, o aceptar una herencia, y el interesado resida en el extranjero, de modo que necesite que otra persona acuda a la Notaría a firmar la escritura de compraventa o aceptación de herencia”.<ejemplo>
<ejemplo>“En el caso de que el otorgante, por cualquier motivo, no quiera coincidir con otras personas que también deban acudir a dicho acto, como por ejemplo en una herencia conflictiva, puede otorgar un poder para que sea otra persona la que acuda al acto a realizar la firma de la escritura”.<ejemplo>
<ejemplo>“O en el supuesto de que una persona necesite realizar habitualmente trámites ante la administración, como el pago de impuestos, puede otorgar un poder especial a favor de su gestor o abogado fiscalista para que sea éste quien, en su nombre y representación, realice todos estos trámites administrativos”.<ejemplo>
As in the case of general power of attorney, the granting of any kind of power of attorney must be based on a relationship of trust between the grantor and the attorney-in-fact, since from the moment the power of attorney is granted, the grantor 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 assets, but on the contrary, if performed in bad faith or in a negligent manner, may result in a great damage to his person and assets.
Therefore, and on this basis, it is no less true that since the scope of action of the special power of attorney is much more restricted, the harmful or beneficial effects derived from its use by the attorney-in-fact are limited and circumscribed to the object or scope of action to which the special power of attorney refers, but equally, as mentioned above, the effects of an improper use can be very serious, since, for example, if a person grants a special power of attorney to sell a house and the attorney-in-fact sells it at a price much lower than the market price, this will generate a serious economic damage to the principal.
For all of the above reasons, the granting of a special power of attorney must be a well thought-out decision, based on the trust that the principal has in the attorney-in-fact, given their family, personal, friendship or professional relationship, and always taking into account the beneficial effects that this may entail, but also the serious damages that may be caused by a malicious or negligent use of the powers of the attorney-in-fact.
As indicated above, a special power of attorney can be used to carry out the specific legal act or business required by the principal, which, logically, must nevertheless be detailed and specified in the body of the power of attorney.
Thus, for example, a deed of special power of attorney may typically refer to one of the following specific powers:
Of course, these are just some examples of special powers of attorney that are usually granted in a notary's office, but their content can deal with any different legal act or business that the principal needs, as long as, of course, it is a lawful act or business.
As regards the need for the special 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 to perform acts that must be drafted in a public deed or that are detrimental to third parties.
Thus, if the specific legal act or business that is sought meets any of these characteristics, it will be necessary to execute 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 certainty of the principal.
Even so, if this is not necessary, it is highly recommended, since the use of a public deed provides the document with greater legal certainty and will facilitate traffic with other persons, who will have no doubts as to the veracity of the representative mandate when it is recorded in a public deed.
As regards the persons who may grant a special power of attorney, i.e., who may assume the role of principal, it is necessary to indicate that the general principle shall apply, by virtue of which the person granting the power of attorney must have the capacity to carry out the specific legal act or business to which the power of attorney refers, since it would be illogical for a principal to confer powers to a third party to carry out a legal business or act that he himself does not have the capacity to carry out.
Therefore, as a general rule, and taking into account the nature of the legal act or business that concerns the specific special power of attorney, in order to be able to grant it, it will be necessary for the principal to have full capacity to act, which is held by persons of legal age, that is, 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 this case, as regards the form of action, it should be indicated that it will be conditioned to what the principal establishes in the deed, so that the principal may choose whether he prefers that the 2 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 case law determine that powers of attorney, including special 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 carry out that specific legal act or business that has 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 power of attorney 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 of interest conflict is that provision that can be included in the 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, the duration of the special power of attorney, if not specified in the deed, will be indefinite. However, logically, if the power of attorney refers to a concrete and specific act(such as, for example, the sale of a specific property owned by the principal), once it has been used and its purpose has been fulfilled, it will lose its raison d'être and, de facto, its validity, since, following the proposed scenario,(the property, once sold, no longer belongs to the principal, so that the attorney-in-fact can no longer make use of this power of attorney, since it only referred to that concrete and specific property).
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's 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 matter, please refer to the section of this website regarding the revocation of powers of attorney.
Of course, the attorney-in-fact 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, if necessary, formalize his resignation by means of a public deed. For further information on this matter, please refer to the section of this website on the waiver of powers of attorney.
Of course, there is no problem in this, so that, if for any supervening circumstance it is necessary to modify the special 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 granted power of attorney.
Of course, this is possible, so that the special power of attorney does not only refer to a specific legal act or business, but also determines the manner in which it is to be carried out, for example, if, within the framework of a special power of attorney for the sale of a property, the sale price of the property or the person to whom it is to be sold is fixed, so that the attorney-in-fact cannot sell it to whom he wants or for the price he wants, but only to the person or for the price determined by the principal in the power of attorney deed.
The deed of special power of attorney 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 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.
In this regard, it should be noted 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 recorded, in order to verify their validity. However, such registry, provided for in a regulatory rule, was considered illegal by the Supreme Court and the same was rendered ineffective, so that, as indicated, there is currently no registry in which the granting or revocation of powers of attorney is recorded.
In the event that the 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 at the College of Notaries of Catalonia and, to this 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.
Of course, if the reason for the granting of the special power of attorney is that the attorney-in-fact may intervene in a transaction that is signed in a Notary's office far away from the domicile of the principal(let us imagine a case in which the principal resides in Barcelona and grants a power of attorney for his brother to sell a property he owns in Galicia), if the applicant so requires, it is possible to send an electronic copy of the power of attorney to the Notary's office where the sale is signed, so that the attorney-in-fact can intervene, without having to physically send the authentic copy of the power of attorney by mail, courier or any other means.
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.
STATE REGULATION:
REGIONAL REGULATIONS:
Necessary documentation for nationals:
Necessary documentation for foreigners:
Necessary documentation:
In the case of a foreign company, it will also be necessary to provide:
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