A notarial power of attorney is a legal instrument that allows one person (the grantor) to authorise another (the attorney-in-fact or representative) to act legally on their behalf. The notary takes part to give these acts legal certainty and public faith (fe pública).
Special Power of Attorney
Authorises the representative to carry out one or more specific, limited acts.
- Example: selling a specific property, collecting an inheritance, accepting a gift (donación).
- It does not grant general or ongoing powers.
- It is the safest type of power of attorney if you wish to limit the scope of representation.
General Power of Attorney
Grants the representative broad powers to act on behalf of the grantor in different areas (civil, commercial, banking, etc.).
- It includes acts of administration and, if desired, acts of disposal (sale, mortgage, etc.).
- Given its wide scope, caution and trust in the representative are recommended.
- It may include survival clauses, exclusions, time limits, etc.
Lasting Power of Attorney
Allows the representative to act even if the grantor loses mental capacity in the future.
- Very useful in anticipation of neurodegenerative diseases or loss of capacity.
- It can take effect immediately or from the moment incapacity is declared.
- An alternative or complement to self-appointed guardianship (autocuratela).
Power of Attorney for Legal Proceedings
Authorises lawyers and court representatives (procuradores) to represent the grantor in court proceedings.
- It is required to file claims, appeals and other court actions.
- It may be general for all proceedings or specific to a single case.
- It is usually granted directly at the notary's office or before the court clerk.
Ratification
This is the subsequent validation of an act carried out on behalf of the grantor without sufficient authority or without any authority at all.
- The notary records that the grantor approves the act carried out on their behalf.
- It has retroactive effect if it relates to a contract or legal transaction.
- It is not always valid if it affects the rights of third parties.
Revocation of a Power of Attorney
A unilateral act by which the grantor cancels a power of attorney previously granted.
- It is done by public deed (escritura pública).
- The representative and, where applicable, any affected third party must be notified.
- It is not valid if done privately without reliable proof.
Renunciation of a Power of Attorney
The representative states before a notary that they no longer wish to exercise the power of attorney granted to them.
- This is also done by public deed.
- The grantor must be notified for it to take effect.
- No justification is needed to renounce.
Substitution of a Power of Attorney
If expressly permitted in the original power of attorney, the representative may appoint another person to act in their place.
- A new notarial deed is executed setting out the terms of the substitution.
- The new representative will have the same or fewer powers than the original one.
- If substitution is not expressly authorised in the power of attorney, it cannot take place.
Sub-delegation (subapoderamiento)
The representative appoints another representative while keeping their own power of attorney. Both may act, unless otherwise stated.
- Useful for delegating specific tasks without losing control.
- It must be expressly authorised in the main power of attorney.
- It is also granted by public deed.
Note: All acts relating to powers of attorney are formalised before a notary by public deed. The notary advises the person appearing, verifies their capacity and intent, and ensures the legality of the act.