It is the notarial document by means of which, an attorney-in-fact, to whom a certain person has granted a power of attorney, decides to delegate all or part of the faculties that have been conferred to him in favor of a third person, who is denominated subapoderado, but with the particularity that the initial attorney-in-fact maintains his representative faculties, so that, from that moment, can act in name and representation of the principal as much the initial attorney-in-fact as the new attorney-in-fact, that as it has been indicated, receives the qualification of subapoderado.
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 sub-authorization 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 in turn to delegate to a third person, This new attorney-in-fact 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 sub-authorization, on this occasion the original attorney-in-fact maintains unchanged all the powers that have been conferred to him, which, in addition, from now on may also be exercised by the new attorney-in-fact, who, as has been indicated, receives the qualification of sub-authorized attorney-in-fact.
<ejemplo>“Para una mayor comprensión del acto, se trataría de un supuesto de subapoderamiento el caso en el que, por ejemplo, la Sra. María confiere un poder general a favor de la Sra. Juana (para que ésta, en su nombre y representación, pueda realizar toda clase de trámites, actos y negocios jurídicos en su nombre), pero la Sra. Juana, a resultas de una enfermedad, no puede realizar esta labor durante unos meses, de modo que subapodera sus facultades en otra persona, la Sra. Antonia, para que sea esta quien, durante el tiempo que dure su enfermedad, actúe en nombre y representación de la Sra. María, pero manteniendo la Sra. Juana sus facultades para cuando, una vez esté recuperada, pueda seguir realizando la función que le ha sido encomendada”.<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 whatever reason, the attorney-in-fact initially appointed, for whatever reason, is unable or unwilling to exercise these powers momentarily or temporarily, but wishes to retain the possibility of exercising them whenever he/she wishes.
<ejemplo>“Ello se puede dar en múltiples ocasiones, como por ejemplo si la carga de trabajo del apoderado inicial es muy elevada y no puede atender a todos los cometidos encargados por el poderdante, o si por ejemplo el apoderado sufre una enfermedad o incapacidad temporal que le impide atender sus obligaciones en estos momentos, pero no en un futuro una vez esté recuperado”.<ejemplo>
Thus, if any of these circumstances arise, in order to prevent the principal from having to revoke this power of attorney and grant a new one in favor of a third person, it is possible to resort to the figure of sub-authorization, whereby, as mentioned above, the initial attorney-in-fact delegates all or part of the powers conferred in favor of a "new attorney-in-fact", who is called a sub-authorized attorney-in-fact, who will be 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, but with the exception that the initial attorney-in-fact also maintains his capacity of representation with respect to the principal, so that, in reality, two representatives of the principal coexist or coexist, that is to say, the initial attorney-in-fact and now the sub-authorized agent.
Therefore, as has been indicated, the figure of substitution is an instrument that allows to preserve the validity of a power of attorney when, for whatever reasons, the attorney-in-fact is unwilling or unable to exercise the powers conferred temporarily, in such a way that he/she proceeds to share the powers with another attorney-in-fact so that the principal also obtains 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 sub-authorization if the principal has not expressly forbidden it in the power of attorney. Based on the need for the principal not to have prohibited the possibility of sub-authorization, sub-authorization can be made without problems 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 agent 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 resorts to sub-authorization, even when expressly authorized by the principal, is obliged to give reliable notice to said principal, since in the end he is the person interested in knowing to whom it corresponds to exercise the powers that he has conferred.
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 sub-authorization, if any, that may have been made.
In effect, the notarial legislation determines that in the end, the sub-authorization, 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 is the holder of the protocol of said power of attorney, so that he/she may leave a record of it in his/her matrix.
In any case, this is a procedure that will be carried out by the notary's office ex officio, without any additional steps to be taken by the interested parties.
The answer to this question must be in the affirmative, since this is the basic difference between the figures of substitution of power and sub-powers.
Thus, if a sub-power of attorney is used, the original attorney-in-fact maintains the representative powers, which are then shared with the sub-power of attorney, while, on the other hand, if the figure of substitution of power of attorney is used (which is detailed in another section of this website), the original attorney-in-fact will lose his capacity of representation, being assumed exclusively by the new attorney-in-fact, who is called substitute.
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 sub-authorization 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 person sub-authorized 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 range of persons who may assume the role of sub-proxy, thus avoiding unpleasant surprises that may cause serious economic damage to the assets of the principal.
By means of the sub-authorization, the new attorney-in-fact will be able to exercise those specific powers that the attorney-in-fact delegates to him, whether these are all those provided for in the original power of attorney or, as the case may be, only some of them. Therefore, the terms of the sub-authorization must be taken into account in order to know which powers the new attorney-in-fact may exercise.
If the principal has expressly forbidden the possibility of sub-authorization, and such sub-authorization also takes place, the law determines that such acts shall be null and void and shall not prejudice the principal, i.e., they shall have no validity or effectiveness whatsoever.
On the other hand, if the possibility of sub-authorization is foreseen and the principal has indicated the specific persons who can assume the role of the new attorney-in-fact, if such sub-authorization occurs, the acts carried out by the new attorney-in-fact will be perfectly valid and legal, without any problem about it.
Finally, if the principal has not expressly prohibited the possibility of sub-proxy, but has not expressly provided for it either, if the sub-proxy is executed and the principal does not expressly accept it, two things can happen with the acts performed by the sub-proxy:
In accordance with the provisions of the law, if the sub-authorization has been properly carried out, the sub-authorized person shall have no liability. However, if the sub-authorization has been carried out despite the prohibition of the principal, or the sub-authorized person is notoriously incapable or insolvent, the Civil Code determines that the original attorney-in-fact shall be liable for the management of the sub-authorized person.
Indeed, if the original power of attorney was granted by public deed, a sub-powers of attorney, which in the end implies a modification thereof, must be executed by public deed.
The sub-authorization of a 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, of course, 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.
With regard to the personal qualities of the person who will be appointed as a sub-power of attorney, 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, 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 sub-authorization is possible, such attorneys-in-fact may appoint several sub-authorized agents to exercise the powers conferred.
The sub-authorization shall have the duration of the original power of attorney in question, so that the time limitation of the sub-authorized party's actions must be taken into account in order to determine, if applicable, the time limitation of the sub-authorized party's actions.
Of course, the attorney-in-fact granting the sub-authorization may, at any time, revoke it if he considers that it no longer has any reason to exist, so that from that moment on, the original attorney-in-fact would again exercise the powers alone.
Likewise, the principal may revoke the original power of attorney at any time he/she wishes, so that if the sub-power of attorney occurs, and the principal decides that he/she no longer wants that third party to represent him/her, revoking the original power of attorney, the sub-power of attorney, 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 subproxy holder so that he/she has a reliable record of it and refrains from making use of the power of attorney.
Of course, the power of attorney may also be relinquished 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 thereof or, as the case may be, formalize his relinquishment 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 sub-authorization 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 to attend the signing of the deed of sub-authorization or to accept their designation as such, nor, of course, for the principal.
In fact, in order for the sub-authorized person to be able to make use of the power of attorney and carry out all the legal acts or business referred to therein or those that have been authorized, it will be necessary for him to have an authentic copy of the document, so it seems reasonable that the original attorney-in-fact should deliver to him an authentic copy of the original power of attorney, as well as of the deed of sub-authorization.
In any case, if the original attorney-in-fact also wishes to maintain his powers of action, he will also need a certified copy of the power of attorney, so the most reasonable thing to do would be to request a new certified copy from the notary's office, so that both attorneys-in-fact have a copy of the document.
Once the deed of sub-authorization has been signed, the notary's office will proceed, in the same act, to deliver an authentic copy of the deed of sub-authorization to the grantor, so that he may make the corresponding use of the same.
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.
Consequently, sub-proxies 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 sub-proxy is that the new attorney-in-fact can 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 sub-proxy to the Notary's office where the transaction is signed, so that the sub-proxy can intervene, without having to physically send the authentic copy of the sub-proxy by mail, courier or any other means.
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:
