General or special power of attorney?
A power of attorney is a contract under which one or more people are authorised to carry out one or more transactions in our name, on behalf and at the risk of the person granting the power.
In short, a power of attorney is a mandate for someone else to represent us in a specific matter or in general, depending on the type of power we grant.
General power of attorney
The attorney is authorised to represent the grantor in any transaction, or to carry out any transaction: selling, buying, mortgaging, leasing, waiving rights, settling disputes, and so on.
This type of power can be risky for the grantor, because the attorney is authorised to do practically anything — even without the grantor’s consent, or against their wishes.
Special power of attorney
The attorney is only authorised to represent the grantor in the transactions expressly set out in the power.
This type of power limits what the attorney can do. For example, if the power is granted to sign the lease of a flat, the attorney cannot sell, mortgage or give it away. It is granted for one or more specific matters, limiting the attorney’s authority.
How are general and special powers granted?
As we have said, it is a contract of mandate. The law is not rigid: it provides that a general power must be granted by public deed, while a special power may be accepted in a private document. Even so, it is best to grant both by public deed before a notary, as public bodies and private parties generally require it.
How long does a power of attorney last?
The mandate ends when it is revoked or renounced, if the attorney loses legal capacity, dies or becomes insolvent. It also ends if the grantor loses legal capacity, unless it was provided that it should continue.
Our recommendations
We grant a power of attorney to someone because we trust them, but there is never a guarantee that the attorney will carry out their task properly, will not exceed their authority or will not use it to take advantage of the grantor’s good faith.
It is advisable to consult a specialist and explain what we want or expect the attorney to do on our behalf. That way, the specialist can assess what powers the attorney needs and for how long, safeguarding our interests.
